High Court · 2012

treat the appellant junior to the writ petitioner. It was observed :- (cid:28) In the instant matter both the teachers have received the graduate scale of pay w.e.f. 19/11/1991 i.e. from the date of provincialisation of their schoo l. Here the tenure of their service during the non-provincialisation stage of th e school is to be taken into consideration. The initial date of appointment/join ing and the date of their continuous service in the school are to be taken into consideration to arrive at a decision in the matter. The graduate degree seems e ssential and it is a precondition for grant of allowing graduate scale of pay an d the graduate scale of pay has been allowed to both the teachers considering th eir having the degree. Had Smt. J. Begum not possessed the degree at the time of provincialisation of the school she would not have been entitled to the graduat e scale and the question of giving seniority at par with Sri Surab Ali who is a Graduate General Teacher would not have arisen. Decision After examination of their service period prior to provincialisation of the school the seniority of Smt. J. Begum over Sri S. Ali appears to be clear. T herefore, it is decided that Smt. J. Begum, Hindi Teacher is senior to Sri S. Al i, Assistant Teacher as considered from the date of initial appointment, date of joining, the date of continuous service and also the decision of the Full Bench of the Hon’ble High Court as stated above. Therefore, the Director Secondary Ed ucation is directed to fix the seniority accordingly. (cid:29) Learned Single Judge held that since the appellant was not graduate when she joined service on 1.2.1986, she could not claim seniority over the writ pet itioner. It was observed :- (cid:28)11) The question that is required to be answered in the present case is whether the service rendered by the private respondent prior to obtaining th e graduate degree should be counted at par with the writ petitioner who started service with a graduate degree. Although Rule 24 of the Rules do not provided a ny guidelines for determining seniority of teachers at the pre-provincialized st age on the basis of educational qualifications, in the provincialized stage, the re are distinct classes of teachers depending upon their educational qualificati ons. For instance, a person with P.U. qualification is appointed as intermediate teacher whereas a person with graduate qualification is usually posted in the g raduate scale. Therefore, although no separate distinction is made at the ventu re stage on the basis of educational qualifications of teachers, when seniority is being considered only on the length of service, it would be wrong in my view to mechanically take note the length of service, without considering the particu lar class in which, the service is rendered by an incumbent. 12) The private respondent when she joined service on 1.2.1986, was not a graduate and she obtained the graduate degree only in the year 1987. But t he writ petitioner joined the school on 14.9.1986 as a graduate. But by the time the school came to be provincialized on 19.11.1991, the private respondent too had obtained her graduate qualification in the year 1987 and accordingly both ha ving received the graduate scale from the same date, was considered to be at par with each other. But during the re-consideration exercise made by the Commissio ner in pursuant to the Full Bench decision in Rukmini Bora(supra), what was over looked by the Commissioner was that the Full Bench’s declaration was given on th e pre-existing and accrued rights of the Graduate Classical Teachers. The respon dent prior to 1987 cannot be considered to be Graduate Classical Teacher and the refore in my view, her service before graduation should not have been taken into account for declaring her to be senior to the writ petitioner. 13) The Supreme Court in the case of M. Ramachandra vs. Gobind Balb and others reported in 1999(8) SCC 592 has held that length of service in a part icular class, category or grade is relevant for counting the length of service f or determining seniority. A similar view was also taken by the Supreme Court in Kausal Kishore Singh vs. Dy. Director of Education and others reported in 2002 (9) SCC 634, wherein it is declared that- (cid:28)the claim of seniority of the employ ee is always determined in any particular grade or cadre and it is not the law t hat seniority in one grade or cadre would be dependent on the seniority in anoth er grade or cadre. (cid:29) Having regard to these decisions of the Apex Court, I hold that the view taken by the Commissioner in the impugned order dated 17.05.2010 i s inconsistent with the Law declared by the Apex Court in M. Ramachandra(supra) and Kaushal Kishore Singh(supra). 14) In view of the Law laid down by the Supreme Court in M. Ramachan dra(supra) and Kaushal Kishore Singh(supra) and also taking into account the pur port of the Full Bench decision in Rumini Bora (supra) which referred to the Gra duate Classical Subject Teachers, I am of the considered opinion that the impugn ed declaration made by the Commissioner in favour of the respondent is unsustain able in Law and the same is accordingly quashed. The consequential order of the Director, DSE, whereby the respondent was posted as In-charge Headmaster of Put uakata High School, Morigaon is also interfered with. (cid:29) We have heard learned counsel for the parties. It is clear from the record that appellant had longer length of service. Their seniority started at the time of provincialisation, that is, 19.11.1991 a t which point of time both of them had graduate qualification. Length of service of the appellant was more than the respondent-writ petitioner. There is no prov ision in the Rules to treat the appellant junior to the writ petitioner merely b ecause she did not have the graduate degree prior to provincialisation. This bei ng the position, the appellant could not be treated to be junior to the writ pet itioner. The judgments relied upoin in the impugned order i.e. M. Ramachandra Vs . Gobind Balb and ors., (1998) 8 SCC 592 and Kausal Kishore Singh Vs. Dy. Direct or of Education and ors., (2002) 9 SCC 634 did not deal with the situation of di fference of qualification prior to provincialisation. Keeping in mind this disti nction, the appellant could not be treated to be junior, particularly when under the Rules seniority for the period prior to provincialisation did not depend up on holding of graduate qualification. Accordingly, we allow this appeal, and set aside the impugned order and dismiss the writ petition.