AZIRUDDIN CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution challenging the promotion of respondent No. 4 to the post of Vice-Principal of Lala HS & MP School by order dated 27.1.96.

(2.) The facts briefly are that the petitioner was appointed as an intermediate teacher in Lala HS .& MP School on 3.3.59 and he joined the said school as a graduate teacher on 13.9.62. The respondent No. 4, on the other hand, joined as a graduate teacher with effect from 3.10.61. The aforesaid school was provincialised with effect from 1.10.77. In the year 1995, a selection was held for promotion to the post of Vice-Principal of the school from amongst the graduate teachers of the schools by the State Selection Board and a select list dated 20.12.94 was published. In the said select list, the order of preference for appointment to the post of Vice-Principal of the school in question was given. It was however stated therein that no appointment was to be made in those schools whose any senior candidate was left out. As per the order of preference given in the select list, the name of the petitioner was shown against serial No. 1. and the name of the respondent No. 4 was shown again serial No. 2. Despite the fact that the petitioner was placed against serial No. 1 in the order of preference in the select list, the respondent No.4. was promoted to the post of Vice-Principal of the school by the impugned order dated 27.1.96. Aggrieved, the petitioner has moved this court for quashing the said impugned order and for a direction on the respondent Nos. 1 and 2 to promote him as Vice-Principal of the school on the basis of the recommendations made by the State Selection Board. On 26.2.96, this court while issuing notice of motion passed an interim order directing that the promotion of respondent No. 4 to the post of Vice Principal of the school under the impunged order would remain stayed. After notice the respondent No. 4 has entered appearance and filed his counter-affidavit, and his case was that having joined as graduate teacher in the school prior to the petitioner, he was senior to the petitioner as graduate teacher in the said school and that the dispute between the petitioner and the respondent No. 4 with regard to the seniority was referred to the State Government and by order dated 13.12.95 the Government declared that the respondent No.4 was senior to the petitioner considering the date of joining of the petitioner and the respondent No. 4 in the cadre of graduate teachers in the school and ordered that the respondent No. 4 therefore be promoted to the post of Vice-Principal in the school against the existing vacancy.

(3.) When the civil rule was taken up for admission today, Mr. S.A. Laskar, learned counsel for the petitioner, submitted that the petitioner has already retired from service as the Principal in-charge of the school on 31.3.98 and the respondent No.4 has retired as a graduate teacher from the school on 30. 7.96. The only question therefore which has to be decided in this civil rule is as to whether the petitioner was entitled to be promoted to the post of Vice-Principal in place of respondent No. 4 and was consequentially entitled to his pay and allowances as Vice-Principal for the period he worked as Vice-Principal and the salary of Principal for the period he worked as the Principal of the school and to his pension accordingly. He argued that Rules 10 and 10- A of the Assam Secondary Education (Provincialised) Service Rules, 1982, would show that the post of Vice-Principal is a selection post and that on the basis of assessment of merits of the candidates, the State Selection Board is required to recommend the candidates for the post of Vice- Principal in order of merit. According to Mr. Laskar, since in such selection, the Selection Board placed the petitioner above respondent No. 4 in the merit list, the petitioner was entitled to be promoted to the post of Vice-Principal and not the respondent No. 4 and, therefore, the impugned promotion of the respondent No. 4 was contrary to the provisions of Rules 10 and 10-A of the Rules, 1982. Mr. Laskar further contended that the" post of Vice-Principal in the school in question fell vacant since 27.7.92 and, therefore, the petitioner was entitled to be promoted to the post of Vice-Principal of the school with effect from 27.7.92 and was entitled to salary of Vice-Principal from 27.7.92. He further stated that the petitioner worked as Principal in-charge of the school with effect from 1st April, 1996 till the date of his retirement on 31.3.98 and, therefore, he was also entitled to salary as the Principal of the school and on the basis of the determination of his pay as such Vice-Principal and Principal of the school in question he was also entitled to his corresponding pension after his retirement.