NILAKANTA NATH Vs. PROBHAT BORAH AND 4 OTHERS

JUDGEMENT

(1.) Challenge in this intra-Court appeal is made to the Order dated 21.08.2013 passed in WP(C) 5087/2011. The said case was instituted by respondent no. 5 herein i.e. Probhat Borah assailing the order dated 21.07.2011 of the Director of Secondary Education, Assam. By the said order the appellant herein i.e. Nilakanta Nath was promoted as the Headmaster of Jengraimukh High School, Majuli, in the district of Jorhat. Ground of challenge was that the writ petitioner/respondent no. 5 herein was the senior most teacher of the school and for the fact that the appellant herein was transferred to the school on 24.03.1999 at his own request, he was not entitled to claim seniority over the existing staff of Jengraimukh High School.

(2.) The writ petition was answered in favour of Probhat Borah, having regard to the prescription under Rule 24(2)(v) of the Assam Secondary Education (Provincialisation) Service Rules, 2003. Pertinent to mention, amendment to Rule 24 was brought about by the Assam Secondary Education (Provincialised) Service (Amendment) Rules, 2012 only with effect from 10.07.201 The said Rule 24 (2)(v) prescribed that a teacher who has been transferred on his own request to any other school, cannot claim seniority in that school and such seniority will be counted w.e.f. the date of his joining in that school.

(3.) The learned Single Judge while rendering the Order dated 21.08.2013 took notice of the submission made on behalf of the appellant herein to the effect that whereas Nilakanta Nath was selected for the post of Headmaster, Probhat Borah was selected for the post of Assistant Headmaster. As such, contention raised was that Probhat Borah, in the first place, was not entitled to claim promotion to the post of Headmaster as he was not selected for the post. Rule 13 of the Assam Secondary Education (Provincialisation) Service Rules, 1982 was relied upon to say that as per the said Rules inter-se seniority is required to be determined on the basis of the period of continuous service and, therefore, the seniority of Nilakanta Nath will be carried forward from the time he was in the earlier school i.e. Rangachahi Tonuram Nath High School and not from the date i.e. 24.01999 when he was brought to Jengraimukh High School. Notice was also had to the transfer order of the appellant where it was stipulated that he cannot claim seniority over the existing staff of the school in question. Reference was also made to the Full Bench decision of this Court in Jamal Uddin Ahmed v. State of Assam, reported in 2012 (1) GLT 1, where interpretation was made to Rule 24(2)(v) of the Service Rules, 200 The Full Bench decision held that request transfer would entail effacement of the past service of a teacher and would not entitle him to claim seniority in the transferred school.