Gauhati High Court
Arati Rani Das vs The State Of Assam And 4 Ors on 23 March, 2021
Equivalent citations: AIRONLINE 2021 GAU 123
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/7
GAHC010078292020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2311/2020
ARATI RANI DAS
W/O- NIVU RAM DAS, SENIOR MOST ASSTT. TEACHER OF NO. 1036 SONAI
ROAD SUHAG SUNDARI PATHSALA, UNDER SILCHAR URBAN
EDUCATION BLOCK, R/O- 1ST LINK ROAD, LANE NO. 15, H.NO. 27, P.O.
LINK ROAD, DIST.- CACHAR, ASSAM, PIN- 788006
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
ELEMENTARY DEPTT., ASSAM (CIVIL) SECRETARIAT, DISPUR, GHY-06
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
ASSAM
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
CACHAR
SILCHAR
ASSAM
PIN- 788003
4:THE DY. INSPECTOR OF SCHOOLS
SILCHAR
CACHAR
ASSAM
PIN- 788001
5:JHUMA NATH
JUNIOR ASSTT. TEACHER OF NO. 1036 SONAI ROAD SUHAG SUNDARI
Page No.# 2/7
PATHSALA
UNDER SILCHAR URBAN EDUCATION BLOCK
DIST.- CACHAR
ASSAM
PIN- 78800
Advocate for the Petitioner : MR. A K DUTTA
Advocate for the Respondent : SC, ELEM. EDU
Linked Case : WP(C)/4682/2019
JHUMA NATH
W/O SRI KAMALENDU NATH
R/O H.NO. 12
PRINCE LAND
SONAI ROAD
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN-788006
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
EDUCATION (ELEMENTARY) DEPTT. DISPUR
GUWAHATI-781006
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
EDUCATION (ELEMENTARY) DEPTT. DISPUR
GUWAHATI-781006
3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
CACHAR
PIN-788003
ASSAM
5:THE DEPUTY INSPECTOR OF SCHOOLS
Page No.# 3/7
SILCHAR
DIST. CACHAR
PIN-788001
ASSAM
6:ARATI RANI DAS
W/O SRI NIVU RAM DAS
R/O 1ST LINK ROAD
LANE NO. 15
H.NO. 27
P.O. LINK ROAD
DIST. CACHAR
ASSAM
PIN-788006
------------
Advocate for : MR. A DEKA
Advocate for : SC
ELEM. EDU appearing for THE STATE OF ASSAM AND 5 ORS.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
23.03.2021 Heard Mr. A Deka, learned counsel for the petitioner. Also heard Ms. N Phukan, learned counsel for the Elementary Education Department of the Government of Assam and Mr. BD Das, learned senior counsel for the respondent No.6 Smti. Arati Rani Das.
2. Both the writ petitioner Smti. Jhuma Nath and the respondent No.6 Smti Arati Rani Das in WP(C)No.4682/2019 are claiming their respective rights to be the in-charge Headmaster of No.1036 Sonai Road Suhag Sundari Pathsala. Pursuant to the various litigations that were initiated at the instance of the petitioner as well as the respondent No.6, the order dated 28.06.2019 was passed by the Director of Elementary Education Assam by which a conclusion was arrived that the respondent No.6 would be senior between the two and, therefore, entitled to be in-charge Headmaster of the school concerned.
3. The Director in the order dated 28.06.2019 in respect of the petitioner Smti Jhuma Nath had Page No.# 4/7 recorded a factual finding as extracted:
"The statement and reports of the DEEO, Cachar and statement of Smt. Jhuma Nath A/T was appointed as stipendiary teacher by the Deputy Inspector of Schools, Silchar on 10/04/1992 at 857 No.Mejanta LP School of Katigorah Block under Narsingpur Education Block vide DIS, Silchar vide memo No.3739-43 dated 17/07/1992. After completion of Junior Basic Training of two years she has been drawing her scale of pay on regular basis from 20/10/1993 and she was transferred to 1036 No.1036 Sonai Road Suhag Sundari Pathsala by the DIS, Silchar vide order No.19975-82 dated 02/11/1993 and has been working in this schools since then continuously."
4. Again in respect of the respondent No.6, the Director has recorded the following conclusion of facts as extracted:
"Whereas, Smti. Arati Rani Das A/T, 1036 No.1036 Sonai Road Suhag Sundari Pathsala was initially appointed as an Assistant Teacher on 12/10/1987 at 1498 No.Pathartilla LPS of Salchapra Education Block under Cachar district in the regular scale of pay i.e. she is drawing her salary in the regular scale of pay from 12/10/1987. Thereafter, she was transferred to 1431 No.Jaiferpar LPS of Sonai Block vide order Memo No.TRB/1/95/22/6/6149-50 and subsequently, she was again transferred to No.1036 Sonai Road Suhag Sundari Pathsala of Silchar Urban Block vide order Memo No.958-68 dated 07/05/1997 and she has been serving continuously in this school till date."
5. After recording the respective factual background, the Director gives his decision "considering the above facts and circumstances, it is clearly evident that Smti. Arati Rani Das, Assistant Teacher is the senior most Assistant Teacher of No.1036 Sonai Road Suhag Sundari Pathsala as she is getting the regular scale of pay from 12.10.1987, whereas Smti. Jhuma Nath is drawing her salary with the regular scale of pay from 20.10.1993".
6. Mr. A Deka, learned counsel for the petitioner refers to the provisions of Rule 3(6)(D) of the Assam Elementary Education (Provincialisation) Rules, 1977 which inter alia provides that a teacher shall enjoy the prescribed scale of pay w.e.f., the date of declaration of the training examination result.
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7. Obviously, the said provisions of Rule 3(6)(D) referred by Mr. A Deka, learned counsel for the petitioner is not an independent provision, but is related to the provisions of the Rules prevailing at that point of time that a teacher would be appointed as a stipendiary teacher and, thereafter, would be, required to undergo the Junior Basic Training course.
8. Be that as it may, if the respondent No.6 was given the regular scale of pay from the initial date of appointment, the same by itself cannot be construed to be an act which is so illegal so as to take away the entire seniority of the respondent No.6 from the date of her initial appointment i.e. 12.10.1987. If the respondents had appointed the respondent No.6 on a regular scale of pay from the date of initial appointment at best it can be an aberration of the Rules prevailing at that point of time, and, hence without expressing any view on the merit of the said conclusion of the Director, we take note of that the objection raised by the petitioner under Rule 3(6)(D) as it stood when the respondent No.6 was appointed, is basically questioning the seniority of the respondent No.6 as an Assistant Teacher in the No.1036 Sonai Road Suhag Sundari Pathsala. Whatever had happened in the service condition of the petitioner had happened 33 years back and now cannot be made to be the basis to assail the seniority of a person after long 33 years.
9. In this respect, the principle laid down by the Apex Court in a catena of decisions is taken note of which provides that if the position of seniority has settled down over a long period of time, the same should not be disturbed because another person at a distant future feels that his right would be affected by the seniority having settled in such manner. Considering the said principle of law, we are unable to accept the contention of the petitioner to assail the seniority of the respondent No.6 after 33 years of the seniority having been settled in the manner in which it had settled.
10. The other contention raised by Mr. A Deka, learned counsel for the petitioner is that both the writ petitioner as well as the respondent No.6 had earlier served in some other schools and both of them were transferred to No.1036 Sonai Road Suhag Sundari Pathsala as per the order dated 02.11.1993 in respect of the petitioner and the order dated 07.05.1997 in respect of the respondent No.6. No material is produced before the Court as to whether such order of transfer were in the public interest or it was in the own interest of the respective parties, nor the Director in the order of 26.08.2019 had Page No.# 6/7 gone into the said aspect and had decided the question. In this respect, references can be made to an Office Memorandum dated 21.03.2012 of the Commissioner and Secretary to the Government of Assam in the Secondary Education Department which provides that if the order of transfer does not specifically mention that the transfer was in the public interest, it would have to be construed under the law that the transfer was in the own interest of the person concerned.
11. In view of the above, in order to decide the question as to whether the petitioner or the respondent No.6 was transferred to No.1036 Sonai Road Suhag Sundari Pathsala in the public interest or in the own interest of the respective parties, we remand the matters back to the Director for a decision on the said question. We, however, make it clear that in remanding the matter back to the Director, we provide that the petitioner shall not again re-open the question of seniority of the respondent No.6 in No.1036 Sonai Road Suhag Sundari Pathsala by raising the question that her initial appointment itself was in a regular scale of pay and not as a stipendiary teacher and further that her regular scale of pay could have been paid only after a declaration of the result of the Junior Basic Training course.
12. On the matter being remanded back, it is provided that the Director of Elementary Education, Assam shall pass a reasoned order within a period of one month from the date of receipt of the certified copy of this order. Till such a reasoned order is passed, status-quo as on today between the petitioner and the respondent No.6 as to who would be the in-charge Headmaster of the school shall be maintained.
13. By WP(C)No.2311/2020, Smti Arati Rani Das who is the petitioner therein has raised the grievance that although she was allowed to be the in-charge Headmaster of No.1036 Sonai Road Suhag Sundari Pathsala, she was not paid the in-charge allowances. The Director while passing the reasoned order shall also look into the said question and pass a reasoned order.
14. Both the writ petitions stand disposed of in the above terms.
JUDGE Page No.# 7/7 Comparing Assistant