NALINI KANTA SHARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution has been filed by the petitioner Sri Nalini Kanta Sarma challenging, the judgment and order passed by the Assam Administrate Tribunal on 27.3.2001 in case No. 69 ATA/2000.

(2.) THE case of the petitioner is that he joined Haribhanga High School as a graduate teacher on 25.6.79. The said school was provincialised in the year 1977. The respondent No. 5 Shi Akshay Thakuria on the other hand was serving as a teacher at Jalkhana Bhatuakhana High School since 7.11.1975 at a fixed salary of Rs. 120 per month. The said school was provincialised on 23.2.1980 and the service of the respondent was also regularized from that date. The respondent, thereafter, got himself transferred to Haribhanga High School in the year 1990 and since then he is working as assistant teacher in the said school. When the post of the Assistant Head Master at Haribhanga fell vacant in 1999, the petitioner as well as respondent No. 5 participated in the selection for the post of Assistant Head Master. Further the petitioner was allowed to discharge the function of Assistant Head Master with effect from 10.5.2000 on the retirement of the earlier Assistant Head Master. In the above selection process, the petitioner was selected at serial No. 1 and respondent No. 5 was selected at serial No. 2. The respondent No. 5 thereafter approached the Assam Administrative Tribunal in case No. 69 ATA/2000 and vide impugned order dated 27.3.2001, the Tribunal set aside the order of selection and also held that the respondent Shri Akshay Thakuria is the most deserving candidate and he should be promoted to the post of Assistant Head Master and hence the present writ petition.

(3.) IN this case, there is no dispute at the Bar that the petitioner Sri Nalini Kanta Sharma is the senior most teacher in graduate scale of Haribhanga High School (for short the school). Although the respondent was serving as a teacher since 1975. That is prior to the writ petitioner, he was junior to the writ petitioner in the said school as he had joined the said school in the year 1990 and that too on his own request i.e. the respondent No. 5 was not transferred in the public interest and the transfer was sought by the respondent and accordingly he was transferred. The law is well settled that such transfer does not carry the earlier period of service for the purpose of seniority in the transferred school. The learned counsel for this respondent No. 5 has also not claimed any seniority on that count. There is the finding of the Assam Administrative Tribunal also that respondent No. 5 Akshay Thakuria was transferred to Haribhanga High School on his own request.