1.The petitioner presently serving as Assamese Language Teacher in the school called Popular M.E. School in the district of Cachar is aggrieved by Annexure 7 order dated 27.08.04 by which the respondent No. 4 was promoted to the post of Headmaster of the said school. In the order of promotion, the respondent No. 4 has been shown as duly selected and approved candidate.
2.The petitioner was first appointed by the managing committee of the school on 25.02.77. On the other hand, the respondent No. 4 was appointed by the managing committee in the school on 20.10.83. However, such appointments were prior to provincialisation of the school.
3.The school was provincialised w.e.f. 01.01.84 by Annexure-4 order dated 15.03.84. In the order five posts were shown to be in the category of general intermediate. According to the petitioner one post out of five was meant for him. Even otherwise also it is the case of the petitioner that by virtue of Annexure-3 order dated 19.01.83 the petitioner was already holding the post in the category of general intermediate. Annexure -3 order dated 19.01.83 is quoted below:
"ORDER
"The post of Assamese Language Teacher sanctioned to the Ghulchand M.E. Madrassa under Karimganj Sub- Division vide this office No. 2G/8/73/47598-609, dated 25.05.74 and retained last vide Govt. letter No. EBS. 33/73/146, dated 11.08.82 is hereby withdrawn and placed in the Popular M.E. School with immediate effect.
Sd/- K.C. Das
Inspector of Schools,
C.D.C. Silchar"
4.From the aforesaid order it is seen that the particular post was withdrawn from another school and was placed in Popular M.E. school in which the petitioner had been serving as Assamese language teacher. It is the case of the petitioner that since he was the only Assamese language teacher at that point of time, the post was meant for him.
5.Upon reference to Annexures-6, 6A and 6B communications dated 27.07.01, 12.09.01 and 03.11.01 made by the District Elementary Education Officer, Cachar, Silchar, it is the case of the petitioner that he is senior to the respondent no. 4. The said communications support the case of the petitioner that he is senior to the respondent No. 4. However, by Annexure-7A order dated 12.09.06, the pay and allowances against the post of Assamese language teacher in respect of the schools mentioned in the order were released w.e.f. 01.01.85. One of the schools mentioned in the order is Popular M.E. school. Although in the order it was clearly indicated that the schools mentioned therein including Popular M.E. school was provisncialised in 1984 and the Assamese language teachers were working in the respective school, but their pay and allowances were released w.e.f. 01.01.85. It is in this connection the seniority of the petitioner has been counted w.e.f. 01.01.85 as against the respondent No. 4 whose seniority has been counted w.e.f. 01.01.84 taking the same to be the effective date in terms of Annexure-4 order dated 15.03.84 by which the services of the teachers of the school were provincialised w.e.f. 01.01.84.
6.From the above materials it is the case of the petitioner that on all counts he is senior to the respondent No. 4. The petitioner asserts that merely because the Annexure- 7A order dated 12.09.06 speaks of release of pay w.e.f. 01.01.85, the seniority of the petitioner from the earlier date cannot be ignored. As noted above, the petitioner was the only Assamese language teacher working in the school when the Annexure-3 order dated 19.01.83 was issued allotting the post of Assamese language teacher in Popular M.E. school. Thus, the petitioner was working against the sanctioned post even prior to 01.01.84. Subsequently, when the school was provincialised w.e.f. 01.01.84 by Annexure-4 order dated 15.03.84 altogether five posts were mentioned against general intermediate which according to the petitioner included the post of Assamese language teacher held by him. Even by Annexure-7A order dated 12.09.06 it was indicated that the Assamese language teacher in the schools mentioned in the order including Popular M.E. school were already working and the schools were provisncialised in 1984. Thus, merely because the pay of the incumbents was released w.e.f. 01.01.85, it cannot be said that their seniority would be counted w.e.f. 01.01.85. The contention of the petitioner finds support from Annexure-6 series communications mentioned above in which it was categorically indicated that the petitioner is entitled to count his provincialised service w.e.f. 01.01.84.
7.Mr. Borbhuyan, learned counsel for the petitioner has placed reliance on the decision of this Court reported in Dibya Prasad Nath vs. State of Assam reported in 2002 (3) GLT 515 in which this Court has held that the service rendered in the school prior to provincialisation would count towards seniority. Similarly the Division Bench of this Court in the case of Nipen Kalita vs. State of Assam and others reported in (1988) 2 GLR 17 repeling the contention that the service prior to the period when the incumbent came to hold the sanctioned post is to be ignored, observed that the service prior to the date of holding the sanctioned post cannot be ignored as the same would be unreasonable.
8.If the petitioner is senior to the respondent No. 4, he was entitled to hold the charge of the post of Headmaster which was granted in favour of the respondent No. 4 holding that he was senior to the petitioner. Such an inference was drawn solely on the ground that the service of the respondent No. 4 was provinicialised w.e.f. 01.01.84 while that of the petitioner w.e.f. 01.01.85. However, such a stand is contrary to the materials as discussed above. Going by the initial dates of appointment which is 25.02.77 and 20.10.83 respectively, admittedly the petitioner is senior to the respondent No. 4. If he was senior to the respondent No. 4 in the school, it is not understood as to how his service could be provincialised from a later date than that of the respondent No. 4. In the impugned order dated 27.08.04, the respondent No. 4 has been described as duly selected and approved candidate. Having regard to such reflection made in the order in respect of the respondent No. 4, Mr. S.K. Das, learned Standing counsel, Education Department was requested to produce the relevant records. He submits that no records to establish the respondent No. 4 to be duly selected and approved candidate is available. I have gone through the relevant file produced by Mr. Das, learned Standing counsel, but I do not find any material so as to suggest that the respondent No. 4 was duly selected and approved by the competent authority.
9.Mr. Borbhuyan, learned counsel for the petitioner submits that as per his instruction, at that point of time, the In-Charge Headmaster was appointed as regular Headmaster in the particular format in which there was mention of the words "duly selected by DLSE & approved by DEE". It is because of the user of such format, the respondent No. 4 was described to be duly selected and approved. The respondents in their counter affidavit have not stated anything about selection of the respondent No.
4. They have confined their stand only in respect of seniority between the petitioner and the respondent No. 4. As noted above, it is their only plea that the services of the respondent No. 4 having been provincialised w.e.f. 01.01.84 which is prior to the provincialisation of the services of the petitioner w.e.f. 01.01.85, the respondent No. 4 has been promoted as Headmaster of the school.
10.In view of the above, on both counts, i.e. the petitioner was working against the sanctioned post prior in point of time than that of the respondent No. 4 and that he was appointed prior in point of time than the respondent No. 4 before provincialisation of their services, prima facie the petitioner is senior to the respondent No. 4. Consequently, if the seniority was the sole criteria, the grant of promotion to the respondent No. 4 by the impugned order dated 27.08.04, is also not prima facie sustainable.
11.In view of the above, the matter is remanded back to the Director, Elementary Education, Assam for fresh decision in the matter consistently with the observations made above. The respondent No. 1 shall carry out the entire exercise as expeditiously as possible, but not later than 28.02.09. The respondent No. 1 may give appropriate hearing to both the parties towards deciding the mater afresh. Be it stated here that the respondent No. 4 in spite of receipt of notice has not responded to his proceeding.
12.The writ petition is disposed of.
