NARBU LAMA Vs. KISHORE PRODHAN

JUDGEMENT

(1.) THE appellant Narbu Lama joined the Darjeeling municipality as a Lower Division Clerk with effect from August 1, 1979. He was transferred as Assistant Teacher in Municipality Boys' School with effect from September 7, 1987 on a leave vacancy as and by way of temporary arrangement. He was subsequently absorbed as Assistant Teacher having a particular pay scale vide order dated July 15, 1989. He was subsequently confirmed in the post with effect from April 9, 1990. As per the gradation list published by the Municipality Lama was shown to have been appointed with effect from September 7, 1987 being the date when he was transferred on temporary basis. The Municipality conducted a promotional process for the post of Assistant Headmaster. Applications were invited from the teachers of the school. Lama applied for the said post along with one Kishore Pradhan, respondent No. 1 above named. Municipality considered both of them and ultimately promoted Kishore in the post of Assistant Headmaster considering him as senior to Lama. Pertinent to note, Kishore was appointed as a teacher by the Municipality in 1982. Lama claimed that since he had joined the municipality in 1979 he was senior to Kishore. Hence, the gradation list should be modified and the promotional process should be reviewed and he should be given promotion for the post of Assistant Headmaster considering his past service in the Municipality as a Lower Division Clerk. Lama approached the learned Single Judge. Learned Single Judge upon hearing of the rival contentions held that Lama was entitled to have benefit of his past service when he worked as teacher on temporary basis as well as for the period when he was on probation. After holding as such, His Lordship observed that since the subsequent order dated July 14, 1989 absorbed him in the post of Assistant teacher, same was to be considered as a fresh appointment. His Lordship, however, did not consider the fact that Municipality itself placed him in the gradation list by showing his initial entry as on September 7, 1987 being the date when he was temporarily posted as Assistant Teacher.

(2.) BEING aggrieved and dissatisfied with the judgment and order of the learned Single Judge Lama preferred the instant appeal.

(3.) MR. Sougata Bhattacharyya, learned Counsel appearing for the appellant contended that he was transferred from the post of Lower Division clerk to the post of Assistant Teacher in the interest of the administration as clearly stipulated in the order of transfer appearing at page 32 of the Paper book. Since it was not a transfer on request he must get the benefit of his past service and the gradation list should have been modified accordingly. As soon as gradation list is modified he would be entitled to claim seniority over Kishore. He was thus entitled to be appointed as assistant Headmaster after becoming successful in the promotional process. In support of his contention Mr. Bhattacharyya relied on the three Apex Court decisions which are as follows :- (i) 1970, Service Law Reporter, Page 425 (Abdul Khair v. Hon'ble Chief justice, Allahabad High Court and Ors.) (ii) (1989)4 Service Law Reporter, 692 (Lee/a Chopra and Anr. v. Surinder pal Singh and Ors.) (iii) (1998)3 SCC 218 (K. Anjaiah and Ors. v. K. Chandraiah and Ors.)