Petitioner challenged his supersession for promotion to Headmaster post in Assam's Secondary Education Department. Court found petitioner failed to prove seniority per specific rules and held no illegality in impugned order, dismissing the writ petition.
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GAHC010006082020
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/249/2020
MATIYOUR RAHMAN
S/O- LATE MONIURDDIN AHMED, R/O- VILL- GOREMARI, P.O- PASCHIM MAZDIA, P.S- SARTHEBARI, DIST- BARPETA, ASSAM, PIN- 781305
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, EDUCATION (SECONDARY) DEPTT, DISPUR, GUWAHATI- 06
2:THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM FINANCE DEPTT DISPUR GHY- 6
3:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI- 19
4:THE STATE SELECTION BOARD REP. BY THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI- 19 ASSAM 5:THE INSPECTOR OF SCHOOLS BARPETA DISTRICT CIRCLE BARPETA ASSAM
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PIN- 781301
6:MOHSIN ALI S/O- LATE AHMMED ALI ASSTT TEACHER MAZDIA HIGH SCHOOL P.O- PASCHIM MAZDIA P.S- SARTHEBARI DIST- BARPETA ASSAM PIN- 78130
Advocate for the Petitioner : MR. B SINHA
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HON’BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
15-02-2021
Heard Mr. M. Hussain, learned counsel for the petitioner and Ms. P. Chakraborty, learned Standing counsel, Secondary Education Department for the respondent Nos. 1, 3, 4 and 5. Also heard Mr. B. Gogoi, learned Standing counsel, Finance Department for the respondent No. 2 and Mr. J Islam, learned counsel for the respondent No.6.
Matter pertains to selection and appointment to the post of Headmaster in Mazdia High School, Mazdia, in the District of Barpeta, a provincialised Secondary School of the State.
Pursuant to the Government approval on the recommendation of the State Selection Board communicated vide Government Letters No.ASE.361/2019/529 dated 19.11.2019 and ASE.360/2019/106 dated 19.11.2019, the Director of Secondary Education, Assam (DSE) by a common order under No.GB-ESR/Apptt/HM &Suptd./1/2019/15 dated 09.12.2019 promoted the respondent No.6 to the post of Headmaster of said Mazdia High School, Mazdia. The petitioner being aggrieved by the said order of promotion of the respondent in the Secondary Education Department promoting the respondent No.6 to the post of Headmaster in said Mazdia High School, Mazdia, he has preferred this writ petition.
It is contended by the petitioner that he is a Master Degree Holder in Arabic from Gauhati
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University and also obtained his B.Ed. Degree from Banikanta College of Teacher Education in the year 1996-97. Pursuant to the order of the State Government in the Secondary Education Department dated 16.11.1991, the Director of Secondary Education, Assam by an order dated 26.02.1992 appointed the petitioner as an Arabic Teacher in Jamlai High School under the Inspector of Schools, Kamrup District Circle, Guwahati in the Graduate Scale of Pay of Rs.1375/- – Rs.3375/-, whereas the Inspector of Schools, Barpeta District Circle, Barpeta by an order dated 16.06.1992 appointed the respondent No.6 as an Assistant Teacher in said Mazdia High School, Mazdia in the intermediate Scale of Pay of Rs.1185/- – Rs.2395/-. However, pursuant to the Government Notification No.B(3)S.888/93/10 dated 30.12.1993, the Inspector of Schools, Barpeta by order dated 30.12.1993 enhanced the Pay Scale of the respondent No.6 to the Graduate Scale of Pay of Rs.1375/- – Rs.3375/per month w.e.f., 30.12.1993. Later, the Director of Secondary Education, Assam by an order dated 28.07.2003, transferred the petitioner, an Assistant Teacher of Arabic of Jamlai High School, District - Kamrup to Mazdia High School, District-Barpeta, in his own grade and pay with immediate effect against a vacant post of Assistant Teacher of Arabic. Accordingly, the petitioner joined his service in Mazdia High School in July, 2003.
The Director of Secondary Education, Assam by communication dated 25.08.2017 wrote to the Inspector of Schools, Barpeta directing him to fill up the vacant posts of Headmaster in provincialised High Schools of the State as per provisions of the Assam Secondary Education (Provincialised) Services Rules, 2003, amended in 2012. As the petitioner, respondent No.6 and other Teachers of said Mazdia High School are eligible, they participated in the Selection process and the respondents in the Secondary Education Department selected the respondent No.6 to the post of Headmaster of said Mazdia High School, noted above.
Petitioner stated that he received Graduate Scale of Pay since November, 1991 whereas the respondent No.6 received Graduate Scale of Pay since 30.12.1993, which fact has not been reflected in the Service Book of the said respondent. The petitioner challenged the seniority of the respondent No.6 and the order of the Director of Secondary Education, Assam dated 09.12.2019, noted above, by which the said respondent has been promoted as Headmaster of said Mazdia High School, Mazdia.
Rule 14 of Assam Secondary Education (Provincialised) Service Rules, 2003 amended in 2012 relates to recruitment to the post of Vice Principal/Headmaster/Headmistress/ Superintendent/AssistantHeadmaster/AssistantHeadmistress of High/High School/Higher Secondary and Multi-Purpose Schools.
Rule 14(2) of said 2003 Rules amended in 2012 provides as follows:--
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(2) The post of Headmaster/Headmistress/Superintendent shall be filled up by promotion from the School-wise seniority list on the recommendation of the State Selection Board. The Selection of Headmaster/Headmistress/Superintendent shall be based upon seniority and satisfactory Annual Confidential Report for 3(three) consecutive years.
Rule 14 (4) of said 2003 Rules prescribed eligibility for the post of Headmaster/Headmistress/Superintendent/AssistantHeadmaster/AssistantHeadmistress/Assist ant Superintendent of High/High Madrassa Schools of the State.
Regarding appointment to the post of Headmaster/Headmistress, the seniority is prescribed in Rule 24 of said 2003 Rules and Rule 24 (3) of said 2003 Rules reads as follows:-
24(3) The seniority of a member of the service in a cadre who joins in a School otherwise than by direct recruitment i.e., on transfer or otherwise shall be determined as per the date of joining in the School in the concerned cadre. If a member joins in the School through transfer from other School, the seniority shall be determined from the date of his joining in the School in the concerned cadre and the seniority in earlier School or in the same school in a different cadre shall not be taken into account.
It is seen that the respondent No.6 who on 16.06.1992 joined as an intermediate teacher at Mazdia High School, Mazdiaand received intermediate Scale of Pay, but as per Government direction dated 30.12.1993, he received Graduate Scale of Pay since 30.12.1993.
It is seen that the pursuant to the order of the Director of Secondary Education, Assam dated 21.04.2017, petitioner served as an in-charge Headmaster in said Mazdia High school under FR 49(c) in addition to his normal duties as an Assistant Teacher of Arabic and also exercised the financial power with regard to the drawl and disburse of the salaries etc., of the staff of the School as the regular Headmaster of that School retired from service on 31.03.2017. But we cannot leave the sight that the petitioner was transferred from Jamlai High School, Kamrup District to the Mazdia High School, Barpeta District at his own request and accordingly the Director of Secondary Education, Assam passed the relevant order No. GB-EST/TRN/32/96/182 dated 28.07.2003 transferring the petitioner from Jamlai High School, Kamrup District to the Mazdia High School, Barpeta District. In the said order dated 28.07.2003 it was specifically provided that the petitioner will not able to claim seniority over the existing staff of said Mazdia High School and the he shall not be entitled for any T.A. & D.A. with regard to his said transfer.
As such, following the provisions of Rule 24 (3) of said 2003 Rules amended in 2012, the seniority of the petitioner in said Mazdia High School, Barpeta in the Graduate Scale of Pay could be considered from the date in July, 2003 when he joined the said Mazdia High School pursuant to the order of the Director of Secondary Education, Assam dated 28.07.2003, by which he was transferred from Jamlai High School, Kamrup District to Mazdia High School, Barpeta at his own request, noted
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above.
Apparently, the respondent No.6 is senior to the petitioner in said Mazdia High School in terms of Rule 24 of said 2003 Rules.
The petitioner preferred this writ petition on 07.01.2020 challenging the promotion of the respondent No.6 as regular Headmaster of Mazdia High School in terms of the order issued by the Director of Secondary Education, Assam dated 09.12.2019 and the petitioner retired from service on 29.02.2020. The petitioner failed to establish as to how he is senior to the respondent No.6 in terms of the said 2003 Rules, amended in 2012 and also failed to place anything before the Court regarding any illegality in the order dated 09.12.2019 issued by the Director of Secondary Education, Assam promoting the respondent No.6 to the post of Headmaster of Mazdia High School, Barpeta which was issued in terms of the approval of the State Government in the Secondary Education Department on the recommendation of the State Selection Board vide Letter No.ASE.361/2019/529 and ASE.360/2019/106 both dated 19.11.2019.
Considering the entire aspect of the matter, this Court does not find any illegality in the order under No.GB-ESR/Apptt/HM &Suptd/1/2019/15 dated 09.12.2019 issued by the Director of Secondary Education, Assam to interfere with the promotion of the respondent No.6 to the post of Headmaster of said Mazdia High School, Barpeta.
Accordingly, this writ petition being devoid of merit stands dismissed.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the order of promotion of the respondent No. 6 to the post of Headmaster is illegal and whether the petitioner is senior to the respondent.
Whether the petitioner failed to establish seniority over the respondent as per the Assam Secondary Education (Provincialised) Services Rules.
Whether the Court should interfere with the administrative order of promotion of the respondent No. 6.
Matiyour Rahman
The State of Assam
Manash Ranjan Pathak
As recorded by the court registry
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