GHANA KANTA DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) This writ appeal is directed against the JUDGMENT & ORDER dated 12.1.94 passed by a learned Single Judge in Civil Rule No. 1184 of 1990 dismissing the Writ application.

(2.) The petitioner-appellant is a graduate from Dibrugarh University. He also passed B.T. examination from the same university while he was in service. He joined as Assistant Teacher in a post of Graduate teacher in Bardoloni High School On 17.1.64 and thereafter served as Vice Principal of Bordoloi H.S. School when the post of Vice Principal fell vacant, 3rd respondent by Annexure-A letter dated 11.5.90 (to the writ petition) addressed to the then Principal of the said school informed him that his date of superannuation would be 31.5.90 and directed him to hand over the charge of the said school on the said date to the appellant who was then the Vice Principal of the school. The petitioner-appellant having the requisite qualifications and experience formally by Annexure-B letter dated 20.5.90 (to the writ petition) applied to the 2nd respondent, praying for appointment as Principal of the said school. On 1.6.90 he took over charge as Principal of the said school from the 'outgoing Principal C. Dutta. This was conveyed to the 3rd respondent by Annexure-C letter dated 2.6.90 (to the writ petition). It may be pertinent to mention that Minister Education, Commissioner and Joint Commissioner, Education settled the grievances of Assam Secondary Education Teachers and Employees' Association by agreeing to certain conditions. On 7.6.90 by Annexure-D order, the 2nd respondent transferred the 4th respondent who was then the Principal of Sisi Chariali Higher Secondary School as Principal of Bordoloni Higher Secondary School in place of the petitioner-appellant. Being aggrieved, the appellant submitted representation oa 12.6.90 before the Government against the order dated 7.6.90. A telegraphic order was issued by the 2nd respondent cancelling the aforesaid Annexure-D order dated 7.6.90. Later on 20.6.90 the 3rd respon- dent asked the 4th respondent to join as Principal of Sisi Chariali H.S. School. By Annexure-G order dated 20.6.90 the 2nd respondent cancelled the earlier order and validated the order passed on 7.6.90. This was done behind the back of the petitioner-appellant. With petition (civil Rule No. 1184/90) was filed before this Court and this Court by order dated 2.7.90 directed the parties to maintain status quo as on that day. The 4th respondent filed an application for modification of the said order contending, inter alia, that he had already joined as Principal on 11.6.90 in terms of the order dated 7.6.90. Appellant, however, disputed the same by saying that as per order dated 14.6.90 petitioner- appellant did not hand over charge and continued as Principal. By order dated 20.11.90 this Court directed the Secretary, Education to pass order regarding holding of charge. The Government also wrote a letter to the 2nd respondent stating that the order dated 2.6.90 transferring 4th respondent to Bordoloni was stayed with immediate effect and that the appellant would remain as Principal in-charge till disposal of the case. A telegraphic order was issued by the Government directing the 3rd Respondent to hand over examination papers including Admit Cards. On 28.1.91 the prayer of the 4th respondent to stay the order dated 21.12.90 was rejected by this Court. On 8.2.91 the 3rd respondent passed an order allowing the petitioner-appellant to draw and disburse the pay and allowances of the staff of the school. By order dated 17.8.91 the Commissioner and Secretary, Education Department determined the seniority of 4th respondent and justified the order dated 7.6.90. The grounds for staying the operation of the order dated 14.8.91, inter alia, were that the order passed by the 2nd respondent on 7.6.90 which was ratified by order dated 14.8.91 was under challenge before this Court in Civil Rule No. 1184/90. This Court by order dated 2.7.90 in Civil Rule No. 1184/90 passed order of status quo. The petitioner-appellant had been holding the post of Principal, Bordoloni H.S. School and had been discharging his duties in the said school as Principal since 1.6.90. Petitioner-appellant being senior to respondent No.4 as Graduate Teacher by more than 11 years was entitled to hold the charge. Besides the petitioner-appellant was older to 4th respondent by 14 years. The 4th respondent had already been holding the charge of Principal of another school namely, Sisi Chariali H.S. School. The petitioner-appellant further alleged that since 1974 the seniority list of provincialised school teachers had not been prepared by the Government. No select list of Principals, Head Masters, Vice Principals, Asstt. Head Masters had been prepared as required under Rule 13 of the Rules. All actions taken by the Government were on ad hoc basis without application of Rules. In the absence of a select list clause 10 of the settlement dated 19.5.1989 was to be followed. Being aggrieved by the action of the respondents the petitioner- appellant approached this Court by filing the writ petition.

(3.) The contentions of the petitioner-appellant in the writ petition were that the orders dated 7.6.90 and 20.6.90 as well as the order of the Commissioner and Secretary - 5th respondent dated 14.8.91 were passed mechanically. It was absolutely unreasonable and improper in the facts and circumstances of the case. The appellant was appointed and allowed to take the charge of Principal of the said school in conformity with the present policy of the Government of Assam and the appellant having all the requisite qualifications for appointment to the said post, respondents ought to have appointed the appellant as Principal. The 4th respondent was also not selected by the State Selection Board for the post of Principal and he was junior to the appellant and the claim of the appellant to the said post was much higher than that of 4th respondent. The appellant prayed before the learned Single Judge that the order dated 14.8.91 passed by the 5th respon- dent was beyond his scope and in passing the said order the 5th respondent exceeded his power and jurisdiction. The order dated 14.8.91 was passed by the 5th respondent behind the back of the appellant without giving any opportunity of hearing. Neither the appellant nor the 4th respondent being selected by the State Selection Board for the post of Principal and both having held their services on ad hoc basis, it was settled position of law that one ad hoc employee should not be replaced by another ad hoc employee. Although this point was specifically pleaded by the appellant in the writ petition and urged before the learned Single Judge, this aspect of the matter was not considered by the learned Single Judge. 4th respondent did not file any affidavit-in-opposition. Records were not produced by the concerned respondents. The Government in their affidavit admitted that the 4th respondent had been transferred and posted as Principal in Ghilamara H.S. School and again transferred to Sisi Chariali H.S. School and when the post of Principal of Bordoloni H.S. School fell vacant the 4th respondent was transferred to the said school as Principal by order dated 7.6.90. They supported the impugned order. The 1st respondent in the additional affidavit filed later further contended that since no select list of Vice Principal and Principal had been prepared as per the accepted practice and professed norm the post of Principal should be filled up by the senior most person of the school.