High Court · 2012

pondent No.5 on the basis of such erroneous fixation of seniority is illegal. It has also been submitted that even if the resolution dated 10th March, 1994 (A nnexure-A to the affidavit-in-opposition filed by the respondent No.5) was adopt ed by the Management Committee of Madhabdev High School, that would not change t he request made by the respondent No.5 vide communication dated 27th February, 1 994 and the nature and character of the transfer order dated 4th May, 1994. Though no affidavit-in-opposition has been filed by the State respondents despit e pendency of the WP(C) No.3745/2008 for about 4(four) years, Mr. Abedin, learne d standing counsel, Education Department submits that it is evident from the ord er dated 5th August, 2008 passed by the Director that the respondent No.5 was tr ansferred in the interest of public service and hence, the Director has held tha t her seniority would be counted from the date of her initial appointment in San kardev Collegiate High School. Confronted with the order of transfer dated 4th May, 1994 [Annexure-4 to WP(C) No.3745/2008], Mr. Abedin, learned standing couns el, Education Department, however, submits that the Director while passing the o rder dated 5th August, 2008 did not take into consideration that the said order was passed on the own request of the persons mentioned in the said order, while it has also been mentioned that such order was passed in the interest of public service. It has also been submitted that the Director has passed the order date d 5th August, 2008, as the Full Bench of this Court has decided the issue relati ng to the losing of seniority only in the year 2011 in Jamal Uddin Ahmed & Ors. -Vs- State of Assam & Ors. reported in 2012 (1) GLT (FB) 1. Mr. Kataki, learned counsel appearing for the respondent No.5 supporting the ord er dated 5th August, 2008 passed by the Director has submitted that in the trans fer order dated 4th May, 1994 passed by the Inspector of Schools, it has been me ntioned that such transfer was passed in public interest. Referring to the aver ments made in the affidavit-in-opposition filed by the respondent No.5, Mr. Kata ki further submits that the transfer order dated 4th May, 1994 had to be issued because of the resolution adopted by the Management Committee of Madhabdev High School in its proceeding dated 10th March, 1994, wherefrom it appears that the M anagement Committee had requested the departmental authority to transfer Smti. N ivarani Dutta, as Assistant Teacher of the said school to another school and acc ordingly, the said Smti. Nivarani Dutta was transferred vide order dated 4th May , 1994 and in her place, the respondent No.5 was brought in Madhabdev High Schoo l. The learned counsel, therefore, submits that it cannot be said that the trans fer of the respondent No.5 was on her own request but was in the interest of pub lic service. The Director vide order dated 5th August, 2008 has determined the seniority of t he respondent No.5 above the writ petitioner in WP(C) No.3745/2008 on the ground that the respondent No.5 was transferred from Sankardev Collegiate High School to Madhabdev High School in the interest of public service. The said order date d 5th August, 2008 passed by the Director does not reveal proper consideration o f the transfer order dated 4th May, 1994 and also the application stated to be f iled by the respondent No.5 on 27th February, 1994 as well as the aforesaid comm unication dated 10th October, 2008 issued by the Headmistress of Sankardev Colle giate High School to the Headmistress of Madhabdev High School. The resolution stated to be adopted by the Management Committee of Madhabdev High School on 10t h March, 1994 was also not taken into consideration by the Director while passin g the order dated 5th August, 2008. Since the determination of the seniority amongst the Assistant Teachers of Madha bdev High School has a bearing on the regular selection to the post of Headmaste r of the said school, the Director has to determine the seniority amongst the te achers of Madhabdev High School first, taking into account the aforesaid claims, which has not been done by the Director, as is evident from the impugned order dated 5th August, 2008. Having regard to the aforesaid discussion, I am of the view that the Director is required to re-examine the entire matter relating to the claim of seniority by the parties in Madhabdev High School, on the basis of the documents available on record including the aforesaid communications dated 27th February, 1994, 10th O ctober, 2008, resolution dated 10th March, 1994 and the transfer order dated 4th May, 1994. Such reconsideration shall be made by the Director within 45(forty-f ive) days from today. The parties are at liberty to file their respective docum ents before the Director, if so advised, for correct determination of the senior ity as aforesaid. The Director pursuant to the decision that may be taken relat ing to the seniority shall take necessary follow up action in the matter of the regular selection and appointment of the respondent No.5. The order dated 5th A ugust, 2008 passed by the Director of Secondary Education, Government of Assam, in view of the above, is set aside. The Director while passing the said order sh all bear in mind the Full Bench decision of this Court in Jamal Uddin Ahmed (sup ra). The writ petitions as well as the Misc. Case are accordingly disposed of.