High Court
Case Details
WP(C) 3142/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
Both the writ petitions by and between the same parties have been heard analogously and are being disposed of by this common judgement and order. While in WP(C) No. 3142/2007 (hereinafter referred to as the first writ petition) the petitioner has challenged the order dated 27/02/2006 by which the Sub-Inspector of Schools, Biswanath Division ordered for handing over charge to the respondent No.4 upon retirement of the regular incumbent as Headmistress of the School in question, in WP(C) No. 992/2013 (hereinafter referred to as the second writ pet ition), the petitioner has challenged the order dated 29/09/2012 by which the ea rlier order dated 24/09/2012, by which she was allowed to perform the duties as Headmistress of the School was cancelled. Because of this order dated 29/09/2012 , the respondent No.4 continued to hold the charge of Headmistress of the School and still holding the charge.
Legal Reasoning
2. I have heard Mr. P. Mahanta, learned counsel for the petitioner in both the writ petitions. I have also heard Mr.J. Abedin, learned Standing Counsel, Ed ucation and so also Mr. A. Sharif, learned counsel representing the respondent N o.4. I have also considered the entire materials on record. The basic facts of b oth the writ petitions are as follows. 3. As recorded in the earlier orders in this proceeding dated 12/11/2013, t he petitioner was transferred to the present School vide order dated 29/09/1994 in public interest. On the other hand, the respondent No. 4 was transferred to t he School on 26/12/2006 on her own request on mutual arrangement with one Monira m Basumatary. The respondent No.4 having been transferred to the present school not in public interest but on her own interest on mutual arrangement, admittedly she is not entitled to count seniority in the school from the date of her such transfer. On the other hand, leaving aside the earlier period of service of the petitioner , upon her transfer to the present School on 29.9.2004, she would ran k senior to the respondent No.4. Thus, on this count, the petitioner has claimed that she being the senior most teacher of the School, the charge of Headmistres s should have been given to her and in fact, such charge was also given to her v ide order dated 24/9/2012(Annexure-12 to the second writ petition). However, the order was withdrawn vide order dated 29.9.2012, making a grievance against whic h the petitioner has filed the second writ petition. In the counter affidavit filed by the respondents, both official and pri 4. vate, it has been contended that since the petitioner was transferred to the pre sent school which is a Govt. school from a provincialised school, she will not b e entitled to count seniority in the present school. It is the further plea that since the respondent No.4 is a teacher of the present Govt. school, she has bee n allowed to hold charge of the School. 5. It is in the counter affidavit filed by the Director of Elementary Educa tion on 06/11/2013, the aforesaid plea has been raised. However, when it was fou nd that the petitioner had no hand in her transfer to the present school in 1994 and she cannot be deprived of her seniority, if any mistake was committed by th e departmental authorities, the Director of Elementary Education was directed to clarify the position. Be it stated here that the only plea in respect of the pu rported irregularities in transferring the petitioner to the present school in 1 994 is the DI of schools, who could not have transferred her to the present scho ol without the approval of the Director of Elementary Education. 6. After the aforesaid order dated 121/11/2013, the Director of Elementary Education, has filed another affidavit on 19.11.2013 clarifying the position. Fr om this affidavit, it appears that the respondent No. 4 who was earlier appointe d in a Govt. LP school was subsequently transferred to a provincialised school f rom where she was again transferred to the present Govt. school. Thus, the respo ndent No.4 herself is the beneficiary of the transfer from Govt. to provincialis ed and thereafter again to Govt. School. If that be so, there is a practice in v ogue in transferring the teachers from Govt. School to provincialised school and vice-versa. The respondent No.4 herself being the beneficiary of the same, cann ot now question the transfer of the petitioner from the provincialised school to a Govt. school way back in 1994. There is also no formal challenge to the said transfer order. 7. If any approval of the Director of Elementary Education, Assam was requi red towards transferring the petitioner way back in 1994, the petitioner cannot be attributed with any fault as she is not instrumental in getting the approval. The DI of Schools having transferred her to the present school in public intere st and such transfer having been materialized and having remained in force for a ll these years under the very nose of the Director of Elementary Education, Assa m, there is tacit approval on his part. As has been held by the Apex Court in Un ion of India Vs. G.N. Tiwari reported in AIR 1986 SC 348 if a particular act, al though without the approval of the authority, but remained in operation under th e very nose of the authority, it should be presumed that there is tacit approval in respect of the said act. Even otherwise also, about 20 years after the trans fer of the petitioner to the present school in 1994, it cannot be said that she will be on air without any seniority and service benefit. This aspect of the mat ter has now been clarified by the respondent No.2 in his affidavit filed on 19/1 1/2013 with the clear finding that the petitioner would rank senior to the respo ndent no.4 in the school. 8. With this realization, the authority in fact, had passed the order dated 24/09/2012 giving charge of Headmistress to the petitioner but subsequently aga in passed the impugned order dated 29/09/2012 (Annexure-13) withdrawing the same .
Decision
In view of the above, both the writ petitions are allowed by setting asi 9. de and quashing the impugned orders, namely the order dated 27/02/2006 (Annexure -7 to the first writ petition) and the Annexure-13 order dated 29/09/2012 (Annex ure-13 to the second writ petition) with the direction that it is the petitioner who will hold the charge of the post of Headmistress of the school and the orde r dated 24/09/2012 (Annexure-12 to the second writ petition), shall stand restor ed and accordingly the Director of Elementary Education shall pass appropriate o rder immediately. 10. . Both the writ petitions are allowed. There shall be no order as to costs