Quashed

Sipra Sikdar v. the State of Assam Anda 5 Ors.

Gauhati HC2 Aug 2019WP(C)/434/2019

Case brief

AI extract

What is this about?

Petitioner challenged rejection of her promotion claim due to seniority loss of a respondent transferred on own request. Court held impugned order illegal for failing to consider a 2012 clarificatory order on transfers, setting it aside and directing fresh inquiry.

What did the court decide?

Impugned order dated 05.01.2019 set aside; Director directed to pass fresh order within two months considering the 2012 clarificatory order.

Sipra Sikdar Vs the State of Assam Anda 5 Ors. — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010012752019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 434/2019

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1:SIPRA SIKDAR

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W/O- LT ASHOK DAS CHOUDHURY, R/O- VILL ANND P.O. SRIGAURI, DISTKARIMGANJ, ASSAM

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VERSUS

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1:THE STATE OF ASSAM ANDA 5 ORS.

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REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (SECONDARY) DEPTT., DISPUR, GHY-6

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GHY- 19

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3:THE INSPECTOR OF SCHOOLS KDC KARIMGANJ P.O. AND DIST- KARIMGANJ ASSAM PIN- 788806

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4:THE STATE SELECTION BOARD REP. BY ITS CHAIRMAN THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GHY-19

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5:THE HEADMASTER OF SRIGAURI HIGH SCHOOL P.O. SRIGAURI DIST-KARIMGANJ

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ASSAM PIN- 788702

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6:SRI RABIJIT ROY S/O- LT RAKHAL CHANDRA ROY R/O- LAKSHMI CHARAN ROAD P.O. AND DIST- KARIMGANJ

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PIN- 78871

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Advocate for the Petitioner : MR. M KHAN

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Advocate for the Respondent : SC, SEC. EDU.

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BEFORE

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HON’BLE MR.JUSTICE N. KOTISWAR SINGH order

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02-08-2019

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Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr. J. Abedin, learned Standing Counsel, Elementary Education Department and Mr. K.R. Patgiri, learned counsel for the respondent no.5 and Mr. B. Purkayastha, learned counsel for the respondent no.6.

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In this petition the petitioner has challenged the order dated 05.01.2019 by which the respondent no.2 has rejected the claim of the petitioner for promotion to the post of Assistant Headmistress of Srigouri High School, Karimganj. Though various grounds have been raised in this petition to challenge this order, one of the grounds raised is that the respondent no.6, who was transferred to Srigouri High School from his earlier school, namely, RK Vidyapith Higher Secondary School, RK Nagar, vide order dated 29.04.1994 was on his own request and not in public interest.

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The case of the petitioner is that if a transfer is made on the request of a teacher

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concerned, he will lose his seniority and his seniority will be counted from the date of joining in his new school. The learned counsel for the petitioner submits that however, the authorities by counting the seniority of the respondent no.6 from earlier date when he was serving in the earlier school of RK Vidyapith Higher Secondary School, has been treated to be senior to the petitioner because of which the petitioner had been superseded at the time of appointment/promotion to post of Assistant Headmistress. The learned counsel for the petitioner submits that the transfer order does not mention at all that the petitioner was transferred in public interest, though the order dated 29.04.1994 also does not mention that it is on the request of the respondent no.6 that he has been transferred to the petitioner’s school. As such, similar issues had arisen before the State authorities, the Director of Secondary Education clarified the issue vide his order dated 21.0.3.2012 which reads as follows:

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” GOVT OF ASSAM DIRECTOR OF SECONDARY EDUCATION, ASSAM KAHILIPARA, GUWAHATI-19

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No.-DSE/Court Cell/Circular/12/2012/17 Dated: 21^st March, 2012

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ORDER

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A question has arisen as to what orders should be treated as transfer orders issued in “Public Interest” or made in the interest of “Public Service”. It has been observed that in the past, transfer orders were issued by this Directorate and by various Inspector of Schools using various formats. In some orders the word “own Interest” or “public Interest” are absent, only a sentence appears in the concluding para of such orders that no TA or DA shall be admissible raising question as to the interpretation of such orders.

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After careful consideration, it has been decided that all orders which do not contain

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the word or phrase “in the interest of public Services” or “in the Public Interest”, such orders shall be treated or constructed to have been made or issued in “own interest.”

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Director

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Secondary Education, Assam Kahilipara, Guwahati-19”

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From the above, what is clear is that wherever in any transfer order the expression ‘in the interest of public services’ or ‘public interest’ is not used, it shall be treated to have been issued in ‘own interest’. According to the learned counsel for the petitioner, in view of the aforesaid order issued by the Director of Secondary Education on 21.03.2012, the transfer of the respondent no.6 to the petitioner’s school on 29.04.1994 has to be treated at his own request in which event, he will lose his seniority of the past service rendered in the earlier schools and seniority will be counted in the new school from the date when he joins the school in his own request.

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It has been submitted, in that event, the petitioner would be senior to the respondent no.6 and as such, supersession of the petitioner by the respondent no.6 is illegal.

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In view of above, this Court is not entering into other issues raised in this petition. This Court is satisfied that the impugned order passed by the State respondent on 05.01.2019 suffers from a vital defect for not considering the material document, namely, the clarificatary order issued by the Director of Secondary Education, Assam on 21.03.2012 as quoted above. The Director while issuing impugned order dated 05.01.2019 had rejected the claim of the petitioner on several grounds, one of which is that the transfer order does not disclose the phrase ‘own request’ transfer and as a result, the Director did not consider it as illegal or

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irregular to count the past service of the respond no.6 for considering the post of Assistant Headmaster in the new school.

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This Court having gone through this impugned order has observed that the Director while issuing the impugned order did not refer at all to the said clarificatory order dated 21.03.2012, which would be highly relevant for considering the issue.

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It is settled that the power of judicial review will lie against an administrative action, if the administrative order was issued without considering the relevant factors or materials, in which event, it would amount to non-application of mind to the relevant factors.

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In the present case, this Court is of the view that the clarificatory order dated 21.03.2012 is a relevant material to be considered which ought to have been considered by the authorities at the time of passing the impugned order dated 05.01.2019. Accordingly, without making any observation to the other issues raised in the petition, which may be decided at the appropriate forum, this Court would hold that the impugned order dated 05.01.2019 suffers from the vice of non-consideration of a relevant materials, namely, the order dated 21.03.2012 and accordingly, the impugned order dated 05.01.2019 is set aside.

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In view of above, the Director is again directed to pass a fresh order in accordance with law by taking into consideration the aforesaid order dated 21.03.2012. It has been submitted at the Bar that the petitioner has already retired from service. Accordingly, the question of disturbing the continuation of the respondent no.6 as Assistant Headmaster will not arise. However, in the event the petitioner is successful, she may be entitled to all the notional benefits. This exercise shall be undertaken by the respondent authorities within a period of 2 (two) months from the date of receipt of a certified copy of this order.

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With the above observations and direction, the writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Sipra Sikdar v. the State of Assam Anda 5 Ors.

Case brief

What is this about?

What did the court decide?

Sipra Sikdar v. the State of Assam Anda 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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