DEBABRATA SARKAR Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) Both the writ petitions involving a common question of fact and of law, were heard together, and are now being disposed of by this common judgment. In W.P.(C) No. 832 of 2013, the petitioner is questioning the legality of the order dated 15.2.2013 issued by the Director of Secondary Education, Assam (respondent 2) allowing the respondent No. 6 to act as the Principal -in -charge of Public Higher Secondary School (Science Stream), Lanka in W.P. (C) No. 836 of 2013, the petitioner is also challenging the same order made in favour of the same respondent by impleading the petitioner in WP(C)No. 832 of 2013 as the respondent No. 7. For simplification, the petitioner in WP(C) No. 832 of 2013 shall be referred to as "the petitioner No. 1" and the petitioner in WP(C) No. 836 of 2013 shall be called "the petitioner No. 2".

(2.) The facts leading to the filing of WP(C) No. 832 of 2013 may be briefly stated at the outset. The petitioner No. 1 joined the post of Subject Teacher of C.V.P. Higher Secondary School, Karimganj on 22.8.1988 in terms of his appointment order dated 17.8.1988. He was allowed to draw graduate scale of pay with effect from 14.8.1995. He was thereafter transferred to Public Higher Secondary School, Lanka ("the School" for short) by the order dated 22.9.1997 and joined the post on 7.10.1997. By the order dated 24.6.2006, he was allowed to act as the Principal -in -Charge (In -charge Principal) of the School, and was also appointed as the Officer -in -Charge of Lanka -A H.S.L.C. examination centre. It is the case of the petitioner No. 1 that his transfer to the School was in public interest as evident from the resolution dated 6.2.1997 of the School Managing Committee and not on his request. However, since his transfer order projected that his transfer was at his own request, he preferred an appeal dated 9.10.1997 before the respondent No. 2 for modification of the order of his transfer dated 22.9.1997, but the same has not been disposed of till now. While he was serving as the Principal -in -Charge of the School, the impugned order was issued by wrongly interpreting the judgment of the Full Bench of this Court dated 20.12.2011 in Jamal Uddin Ahmed & Ors v/s. State of Assam & Ors.,, 2012 (I) GLT 1 holding that the rule relating order of transfer is retrospective whereas para 70 of the judgment clearly explains that application of the statute is prospective in nature and the impugned order dated 15.2.2013 is bad in law and was liable to be set aside. According to the petitioner, there are many allegations against him from the public as well as teachers and staff of the school: he remains absent from duty without any intimation to anyone which prompted the students to lodge complaints with the authorities.

(3.) According to the petitioner No. 1, he is senior to the respondent No. 6, but the respondent authorities, without taking into account his claim, fixed the seniority position of the respondent No. 6 over him and other teachers of the Public Higher Secondary School even though he has 23 years of working experience whereas the respondent No. 6 has only 16 years of working experience. The seniority list is correctly reflected in the seniority list sent to the respondent No. 2. In fact, the respondent No. 3 by the order dated 29.7.2006 had already held that the petitioner No. 1 is senior to the respondent No. 6. It is the contention of the petitioner No. 1 that as this order was never challenged at any time, his seniority position over the respondent No. 6 has attained finality and cannot now be disturbed: to do so would be to unsettle an already settled position. The respondent No. 2 had passed another order dated 13.9.2010 incompliance with the order dated 30.7.2088 in WP(C) No. 5395/2007 conferring upon the petitioner No. 1 the drawing and disbursing power until further orders, which has not been superseded till now. Moreover, the respondent No. 2 also passed another order dated 24.3.2012 holding that cases already decided should not be reopened again. This has been completely overlooked by the respondent No. 2 while issuing the impugned order, which is, therefore, illegal, arbitrary, suffers from the vice of non -application of mind and cannot be sustained in law.