High Court · 2012

Heard Mr. P.J. Saikia, learned counsel for the petitioner. None has appeared for the official respondents. I have also heard Mr. A.M. Bujarbarua, learned couns el for the respondent No. 4.

2. The petitioner presently serving in Assistant Teacher with Graduate Scal e of Pay of B.P.B. Memorial H.S. School, Sonari in the district of Sibsagar is a ggrieved by Annexure-I order dated 30.1.2012 issued by the Director of Secondary Education Assam allowing the respondent No. 4 to hold the charge of the Princip al of the school in addition to his normal duties as Subject Teacher under FR 49 (C). The arrangement has been made in view retirement of the incumbent principal in charge on attaining the age of superannuation with effect from 31.11.2012.

3. There is no dispute that in the normal circumstances, senior most teache r of the school irrespective of whether he belongs to graduate cadre or post gra duate cadre is required to be given the charge the principal in absence of any r egular principal. The question for determination is as to whether the petiti0ner is senior to the respondent No. 4 entitling him to hold the charge of the princ ipal.

4. The petitioner was initially appointed on 12.5.1976 by the Managing Comm ittee of the School. He was appointed as Elective Subject Teacher in the departm ent of Zoology with effect from 24.5.1976. Be it stated here that the school was not provincialised at that point of time. Be it also stated here that the petit ioner was not qualified to be appointed as Subject Teacher in Zoology as she did not have Masters degree in Zoology. As indicated in the order, such appointment was till such time the post was filled up by an M.Sc. (Zoology).

5. The school was provincialised in 1977. Thereafter the petitioner was app ointed again as Assistant Teacher in the graduate scale of pay. She was so appoi nted against a vacant post and pursuant to the approval of the Directorate of Pu blic Instruction. The said order is dated 23.4.1983 and was issued by the Inspec tor of Schools, Sibsagar District Circle, Jorhat. The services of the petitioner along with some others was confirmed vide order dated 23.12.2011 (Annexure-C) f rom the date of their joining against the sanctioned post vide Government order dated 17.10.1977 and retained permanently vide Government order dated 29.6.1988.

6. As against the aforesaid position relating to service of the petitioner the respondent No. 4 was first appointed as Assistant Teacher in the graduate sc ale of pay on adhoc basis on 12.8.1983. Thereafter pursuant to a selection, he w as appointed as Subject Teacher with effect from 12.11.1986.

7. If we go by the aforesaid respective dates of appointment, admittedly th e petitioner is senior to the respondent No. 4. However, it is the stand of the respondent No. 4 that the petitioner having not been appointed to the service pu rsuant to any regular selection, irrespective of confirmation of her service by the Annexure-C order dated 23.11.2011 from the date of initial appointment/joini ng, the petitioner cannot count her seniority from the date of appointment vide Annexure-B order dated 23.4.1983.

8. While Mr. Saikia, learned counsel for the petitioner submits that even i f the sonority of the petitioner is counted from 23.4.1983 and not from the init ial date of joining on 17.5.1976, then also she would rank senior to the respond ent No. 4, who joined on 12.1.1986. On the other had, Mr. Bujarbaruah, learned c ounsel for the respondent No. 4 submits that since the petitioner was never appo inted on regular basis she cannot get seniority irrespective of continuation of her service. The petitioner has annexed Annexure-E series statements of particulars o 9. f the teaching staff of the school to show that in the graduate cadre she is sen ior most teacher in the school. As noted above, although the post of Subject Tea cher is in a higher cadre than that to the post of Assistant Teacher in graduate cadre, but as per the provisions of the rules a regular promotion to the post o f Principal can be made by selection taking both the cadres as feeder cadre. Onl y difference is in respect of teaching experience. While in case of Subject Teac her the required experience is 15 years, in case of graduate teacher, the requir ed teaching experience is 17 years.

10. The appointment of the petitioner way back in 1983 and to be precise on 23.4.1983 is not under challenge in this proceeding. By the said order she was a ppointed as Assistant Teacher in the graduate scale of pay and the order was iss ued by the Inspector of Schools Sibsagar District Circle, Jorhat. Her service wa s confirmed by Annexure-C order dated 23.12.2011 from the date of her initial ap pointment and joining. This order is also not under challenge. As noted above, i n Annexure-A series in the statement of teaching staff, the petitioner was shown at Serial No. 1 in the category of Graduate Teacher. However, seniority list in respect of Subject Teacher was drawn separately in which the name of the respon dent No. 4 appears.

11. The petitioner was initially appointed in 1976 by the Managing Committee of the school. In that relevant point of time such appointment could be made by the Managing Committee of the school. Although the petitioner was not qualified to hold the post of Subject Teacher but she was appointed considering the need of the school, but the same was subject to the condition that the post would be filled by M.Sc. (Zoology).

12. There is some dispute as to whether the petitioner continued in her serv ice after provincialisation of the school in 1977. Althoug by Annexure-4 her ser vices was dispensed with, but the order was later on withdrawn.

13. Be that as it may, there is no dispute that the petitioner was appointed by Annexure-B order dated 23.4.1983. She has been continuing in her service on that basis and by now has completed about 29 years of service. Her service was c onfirmed with effect from her date of joining. The order of confirmation was iss ued on 23.12.2011. As pre the provision of Rule 13 of the Assam Secondary (Provi ncialisation) Service Rules 1982, the inter-se seniority of the existing employe es in the respective cadre shall be determined in relation to the a) date of con tinuous appointment, b) date of joining and c) date of birth.

14. The petitioner having been appointed by Annexure-B order dated 24.3.1983 and her service also having been confirmed by Annexure-C order dated 23.12.2011 from the date of joining in the post that was sanctioned way back in 1977 (17.1

0.1977), she would get seniority from the said date. In view of the above finding, Annexure-I order dated 30.1.2012 stands se 15. t aside and quashed and the Director of Secondary Education is directed to issue appropriate order immediately towards conferring the in-charge principalship to the petitioner.

16. t. The writ petition is allowed. However, there shall be no order as to cos