RAMA KANTA DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr B.C. Das, learned counsel for the petitioner and Mr J. Singh, learned counsel for the respondent No. 5. Also heard Mr. Thakur, learned Government Advocate for the respondent Nos. 1 to 4

(2.) The petitioner Sri Rama Kanta Das was appointed as an assistant teacher in Kachua Govt. Aided M.E. School by the Managing Committee of the said school with effect from. 1.8.77. Respondent No.5 0 Tarun Chandra Bora was also appointed as assistant teacher of Singimari Govt. Aided M.E. School by the Managing Committee of the said school with effect from 1.5.77. The petitioner was appointed temporarily by the Inspector of Schools vide order dated 19.1.79 with effect from 1.10.77 and on the other hand, the private respondent was also appointed as assistant teacher with effect from 1.10.77. Subsequently the gradation list of M.E. School teachers for Nagaon was published in the year 1994 wherein the name of the petitioner was shown at serial No. 100 and the name of the private respondent was shown at serial No. 116. The respondent challenged the said order stating that he has been placed at serial No. 116 on the wrong premises that he joined the service on 1.10.77 whereas in case of the petitioner, he has been shown to have joined on 1.8.77, that is, date of initial appointment. According to the private respondent, his date of initial appointment on 1.5.77 should have been reckoned. The grievance of the respondent was accepted and a fresh gradation list was published in the year 1997 (Annexure-J) wherein the respondent has been placed at serial No.97 showing the date of joining and appointment as 1.5.77 and the petitioner was placed at serial No. 103 showing the date of joining on 1.8.77.

(3.) In this case there is no dispute at the Bar regarding the respective date of joining in the school. The case of the petitioner is that although they were appointed by the Inspector of Schools with effect from 1.10.77, their date of birth should be considered for the purpose of fixing the seniority. When there is no merit list as regards the selection process of two persons joining on the same date, admittedly, the date of birth is relevant. But the question is whether the appointment order issued subsequently by the Inspector of Schools appointing both the persons against substantive vacancy on 1.10.77 will be relevant for the purpose of fixing the seniority or not? The petitioner and the respondent were appoint ed on 1.10.77 and they are rendering services in the school and their services are regularised or confirmed subsequently. Therefore, the appointment with effect from 1.10.77 and rendering of service by the petitioner and the respondent can not be said to be de hors the rules. In the Government Aided School, the Managing Committee had power to appoint teachers according to their requirement and the services of such teachers were regularised subsequently against the available vacancy. This is not a case of the petitioner that the appointment of the private respondent was not made by following the procedure as laid down as because both the persons were initially appointed by adopting similar procedure. Moreover, on perusal of the gradation list, it is seen that the date of initial appointment has been taken for the purpose of fixation of seniority. At this stage, we may refer to the following observations of the Apex Court 0in the case of Direct Recruit Class-II Engineering Officers Association-Vs-State of Maharashtra, reported in (1990 2 SCC 715 wherein the Apex Court observed as follows:-