Gauhati High Court
Putul Chandra Saikia vs The State Of Assam And 4 Ors on 21 July, 2017
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
W.P.(C) No. 6184 of 2012
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
21.07.2017
Heard Ms. Dipika Borgohain, learned counsel for the petitioner; Mr. Abani
Deka, learned Standing Counsel, Education Department, Government of Assam for
respondent Nos. 1 to 3 and Mr. Pallab Kataki, learned counsel for respondent No.5.
2. The matter relates to seniority dispute between the petitioner and the respondent No. 5. Both the petitioner and the respondent No. 5 were selected for the post of Headmaster, Madhabdev High School, Kachikota in the district of Lakhimpur, wherein the respondent No. 5 was placed at serial No. 1 and the petitioner at serial No. 2.
3. Pursuant to the order dated 10.03.2008 passed by this Court earlier in WP(C) No. 2790/2007 (Mrs. Dimbeswari Saikia -Vs- State of Assam & 3 Others) and the common order dated 02.08.2012 passed in WP(C) No. 3745/2008 (Mrs. Dimbeswari Saikia -Vs- State of Assam & 10 Others) and WP(C) No. 851/2012 (Putul Ch. Saikia -Vs- State of Assam & 5 Others), the Director of Secondary Education, Assam determined the seniority of the respondent No. 5 above said Mrs. Dimbeswari Saikia (now retired) and the petitioner.
4. In WP(C) Nos. 3745/2008 and 851/2012, the challenge was with regard to the order dated 05.08.2008 passed by the Director of Secondary Education, Assam by which, he determined the seniority of the respondent No. 5 above said Mrs. Dimbeswari Saikia, an exercise that the DSE, Assam had carried out as per the direction dated 10.03.2008 that was issued by this Court earlier in WP(C) No. 2790/ 2008.
5. Pursuant to the common order dated 02.08.2012 passed in WP(C) Nos. 3745/2008 and 851/2012, the DSE, Assam had taken up the exercise again for determining the seniority between the present petitioner and the respondent No. 5 wherein the Director by his order dated 10.10.2012 determined the seniority of the WP(C) No. 6184 of 2012 Page 1 of 7 respondent No. 5 above the petitioner. Hence, this writ petition challenging the said order dated 10.10.2012 passed by the DSE, Assam.
6. From the orders passed earlier by this court as well as the annexures appended to the writ petition and the affidavits of the respondents, it transpires that the petitioner with B.A. & B.T. degrees, pursuant to the decision of the Managing Committee of Madhabdev High School, Kachikota, joined his service as Assistant Teacher on 15.01.1981 after obtaining Graduation on 30.08.1982 and when the said High School was provincialised w.e.f. 19.11.91, his date of joining as Graduate Teacher was shown as 30.08.1982 and he was given the scale of pay of Rs. 1375/- to 3375/- meant for graduate teachers in Secondary Schools.
7. It is to be noted herein that when said Madhabdev High School was provincialised with effect from 19.11.91, the petitioner was even allowed to draw one advance increment as per ROP Rules, 1990 for his B.Ed. degree.
8. Earlier, after the provincialisation on 19.11.1991, when one Assistant Teacher, namely, Ms. Nivarani Dutta joined said Madhabdev High School, as some differences between he, the School Managing Committee, the staff of the school and its students cropped up, the School Managing Committee of Madhabdev High School desired her transfer out of the said High School. Considering the same and as the respondent No. 5, who was serving as an Assistant Teacher at Sankardev Collegiate High School, Lakhimpur who was willing to join said Madhabdev High School, Kachikota; the Inspector of Schools, Lakhimpur District Circle, North Lakhimpur on 04.05.1994 passed an order of mutual transfer at their own request transferring said Smti Nivarani Dutta, Assistant Teacher of Madhabdev High School to Sankardev Collegiate High School vice respondent No. 5, Assistant Teacher of Sankardev Collegiate High School transferred to Madhabdev High School, Kachikota with their own pay, grade and service against each of them, in the interest of public service, observing that no TA/DA will be admissible for their journey on transfer. Accordingly, in pursuance of said transfer order dated 04.05.1994 of the I.S., LDC, North Lakhimpur, the respondent No.5 joined said Madhabdev High School, Kachikota on 14.05.1994.
WP(C) No. 6184 of 2012 Page 2 of 79. The contention of the petitioner herein is that since the respondent No. 5 was transferred mutually on her own request with said Smti. Nivarani Dutta pursuant to the order dated 04.05.1994 of the I.S., North Lakhimpur and joined said Madhabdev High School on 14.05.1994, she is junior to him in the said school.
10. The respondent No. 5 filed her affidavit in the matter on 29.05.2014 and contended that she joined the Madhabdev High School, Kachikota in the year 1994 pursuant to the order of the I.S., North Lakhimpur dated 04.05.1994 but denied that she was transferred to Madhabdev High School at her own request due to mutual transfer with said Smti. Nivarani Dutta. Said respondent No. 5 submitted that on 10.03.1994, the Managing Committee of Madhabdev High School took a resolution that she should be brought to that school in place of said Smti. Nivarani Dutta, who should be transferred out from the said school and the said resolution dated 10.03.1994 of the Managing Committee of the School was forwarded to the I.S., LDC, North Lakhimpur on 11.03.1994 itself. But as the said Inspector did not take any step in that regard, on public pressure, on 20.03.1994 the then President of the political party of Congress (I) Committee, Bihpuria wrote to the said Inspector, North Lakhimpur to take necessary steps to make such transfer as resolved by the Managing Committee of said Madhabdev High School. Therefore, the respondent No. 5 submits that for the interest of public service and betterment of the academic atmosphere of said Madhabdev High School, the Inspector of Schools, LDC, North Lakhimpur by his order dated 04.05.1994 transferred her from Sankardev Collegiate High School to Madhabdev High School and in her place transferred said Smti. Nivarani Dutta from Madhabdev High School to Sankardev Collegiate High School. Said respondent No.5 in her affidavit also stated that initially she joined the Sankardev Collegiate High School on 01.01.1981 pursuant to a decision of the Managing Committee of Sankardev Collegiate High School dated 28.12.1980 and that the said school was provincialised w.e.f. 19.11.1991, whereas the petitioner joined the Madhabdev High School as Graduate Teacher only w.e.f. 30.08.1982. The respondent No. 5 also submitted that her service was confirmed by order dated 21.01.2011 and that by order dated 19.03.2012 she was posted as Headmistress of said Madhabdev High School and stated that since then she serving in the said post till date.
WP(C) No. 6184 of 2012 Page 3 of 711. The Director of Secondary Education, Assam also filed an affidavit in the matter and stated that the respondent No. 5 was posted as Headmistress of Madhabdev High School as she was regularly selected for the said post as per the selection held in January, 2011. The Director also submitted that earlier on 05.08.2008, the Director of Secondary Education determined the seniority of the respondent No. 5 above Smt. Dimbeswari Saikia, who was senior to the present petitioner. The official respondents further stated that the respondent No. 5 is senior to the petitioner as her date of birth is 29.02.1959 whereas petitioner's date of birth is 01.05.1959 and that as by order dated 04.05.1994, the I.S., LDC, North Lakhimpur, in the interest of public service, transferred the respondent No. 5 from Sankardev Collegiate High School to said Madhabdev High School, therefore, her seniority in Madhabdev High School will remain intact and that she cannot be placed as junior to the petitioner and substantiated the impugned order dated 10.10.2012 passed by the Director of Secondary Education, Assam.
12. It is seen that this Court by its order dated 18.03.2008 passed earlier in WP(C) No. 2790/2007 (Mrs. Dimbeswari Saikia -Vs- State of Assam & 3 Others) have set aside the order dated 18.04.2007 of the Director of Secondary Education, Assam by which the Director had determined the seniority of the respondent No. 5 above the said petitioner Smti. Dimbeswari Saikia considering that said respondent No. 5 joined as Graduate Teacher on 01.02.1982 whereas Smti Dimbeswari Saikia joined as Graduate Teacher 02.06.1982 and the present petitioner joined as Graduate Teacher on 30.08.1982 and that the said respondent No. 5 was transferred by the Inspector of Schools, LDC, North Lakhimpur by order dated 04.05.1994 in the interest of public service. The Court in the said order dated 18.03.2008 passed in WP(C) No. 2790/2007 have observed as follows:
"In the backdrop of the reasons assigned in the order dated 18.4.2007 for treating the respondent No.4 (the respondent No.5 in the present petition) as senior to the petitioner when one considers the order dated 4.5.2004 whereby respondent No.4 was transferred to Madhabdev High School, what attracts the attention is that the order dated 4.5.2004 speaks that the transfer in question was a result of mutual requests made by respondent No.4 and one Smt. Nivarani Dutta. In such circumstances, the respondent No.4 should ordinarily be treated as junior to those teachers who were at the relevant point of time serving as Assistant Teachers in Madhabdev High School. Viewed thus, it is clear that unless, otherwise, permitted by law, the petitioner would be regarded as senior to the WP(C) No. 6184 of 2012 Page 4 of 7 respondent No.4 in the post of Assistant Teacher, Madhabdev High School. Though the order of transfer dated 04.05.2004 speaks that the transfer has been made in public interest, the fact remains that when the transfer had been ordered due to request made by the respondent No.4 it is logically follows that unless some materials are brought on record to show otherwise, the order of transfer dated 4.5.2004 would have to be treated as an order of transfer made on mutual request of the parties concerned. The order dated 18.4.2007 whereby inter-se seniority between the petitioner and the respondent No.4 has been fixed gives no explanation that the respondent No.3 had taken into account the fact that the transfer in question took place according to order dated 05.04.2004 on the request made by the respondent No.4. An administrative order must reflect that while passing the order the authority concerned has taken into account all such facts which are relevant and aschewed from considering all such facts which are irrelevant. In the present case, the respondent no.4 appears to have not taken into consideration that the said order of transfer reflects that transfer has been made on then mutual request of the parties concerned. Thus, while determining the inter-se seniority, the respondent No.3 has not taken into account the relevant factor. Such an order is ex-facie illegal for the order suffers from non-application of mind.
Coupled with the above, it is also worth noticing that the determination of question of seniority was obviously going to adversely affect either the petitioner or the respondent No.4. No order as regards their seniority in the facts and circumstances of the present case could have been made without giving both of them any opportunity of having their say in the matter. Looked at from this angle order also, the impugned order dated 18.04.2007 whereby the respondent No.4 has been treated as senior to the petitioner cannot be sustained."
13. The said observation of the Court made on 18.03.2008 in said WP(C) No. 2790/2007 has attained finality by efflux of time as neither the Education Department nor the said respondent No. 4 (respondent No. 5,herein) challenged the same before any higher forum. Further, by the said order dated 18.03.2008 passed in WP(C) No. 2790/2007 the order of the Director of Secondary Education, Assam dated 18.04.2007 was set aside and quashed, directing the said Director to determine the seniority between the petitioner of the said writ petition and the respondent No. 5 herein afresh, pursuant to which the DSE, Assam again passed an order on 05.08.2008 determining the seniority of respondent No. 5 above the present petitioner as well as that of Smti. Dimbeswari Saikia, which was again set aside and quashed by this court by a common order dated 02.08.2012 passed in WP(C) Nos. 3745/2008 and 851/2012 pursuant to which the Director of Secondary Education, Assam passed the impugned order dated 10.10.2012.
WP(C) No. 6184 of 2012 Page 5 of 714. Though the DSE, Assam by the impugned order dated 10.10.2012 determined the seniority of the respondent No. 5 above the petitioner stating that her transfer order dated 04.05.1994 of the I.S., LDC, North Lakhimpur was issued in the interest of public service, but he failed to consider the fact that the respondent No. 5 admitted during the enquiry that she wrote a letter on 27.02.1994 expressing her desire to get transferred out of Sankardev Collegiate High School by means of mutual understanding with the Assistant Teacher Smti. Nivarani Dutta of Madhabdev High School. The respondent No. 5 in her affidavit did not state anything nor denied regarding her such submission of transfer at her own request by mutual understanding with Smti. Nivarani Dutta of Madhabdev High School, except making a statement that her seniority has already been determined way back on 18.04.2007, which is incorrect as this Court by order dated 18.03.2008 passed in WP(C) No. 2790/2007 have set aside the said order dated 18.04.2007 of the Director of Secondary Education, Assam determining her seniority above said Smti. Dimbeswari Saikia and the present petitioner. It is also seen from the impugned order dated 10.10.2012 that the DSE, Assam while determining the seniority of the respondent No. 5 and the petitioner did not consider the fact that the petitioner from the date of provincialization i.e. 19.11.1991 was allowed to draw an advance increment as per the ROP Rules, 1990 for his B.Ed. degree and, as such, was receiving higher scale of pay than the respondent No. 5 w.e.f. 19.11.1991 the date from which services of both the petitioner in Madhabdev High School and the respondent No. 5 in Sankardev Collegiate High School was provincialised. Further, the Director also did not consider the observation made by this Court earlier in the judgment and order dated 18.03.2008 passed in WP(C) No. 2790/2007, where the Court specifically observed that "unless some materials are brought on record to show otherwise by the respondent No. 5, the order of transfer dated 4.5.2004 would have to be treated as an order of transfer made on mutual request of the parties concerned."
15. The order dated 04.05.1994 of the Inspector of Schools, LDC, North Lakhimpur clearly reflects that the said transfer order was issued on mutual transfer on the own request of the respondent No. 5 and the said Smti. Nivarani Dutta.
WP(C) No. 6184 of 2012 Page 6 of 716. As the Director of Secondary Education, Assam failed to consider all these aspects while determining the seniority between the respondent No. 5 and the petitioner by the impugned order dated 10.10.2012, the same being bad in law, is hereby quashed and the said Director is directed again to re-determine the seniority of the petitioner and the respondent No. 5 in terms of the judgment and order of this Court dated 18.03.2008 passed in WP(C) No. 2790/2007 as well as the common order dated 02.08.2012 passed in WP(C) Nos. 3745/2008 and 851/2012 after giving an opportunity of hearing to both the petitioner and the respondent No. 5 and on perusal of the original records pertaining to the transfer order under Memo No. PROV/AT/2/A/92-93/29668-72 dated 04.05.1994 of Inspector of Schools, LDC, North Lakhimpur as well as the original proceedings book with regard to transfer of said Smti. Nivarani Dutta, Assistant Teacher of Madhabdev High School as well as that of respondent No.5, the then Assistant Teacher of Sankardev Collegiate High School.
17. The petitioner shall submit the certified copy of this order before the Director of Secondary Education, Assam along with a fresh representation and shall obtain necessary receipt and within a period of three months from the date of receipt of such representation from the petitioner, the Director of Secondary Education, Assam shall re-determine the seniority between the petitioner and the respondent No. 5 as directed above.
18. With the aforesaid observation and direction, this writ petition stands disposed of.
JUDGE Pb/-
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