The earlier period of service at another school cannot be considered for seniority in the transferred school. The post of Assistant Head Master is a selection post and is not based on seniority alone.

P.G. Agarwal, J.

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. Heard Mr. L.P. Sharma, learned counsel for the Writ petitioner and Mr. U.K. Nair, learned standing counsel for tin respondents.

4. 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.

5. In the present case, there is also no dispute at the Bar that the writ petitioner as well as the private respondent No. 5 are both eligible for promotion to the post of Assistant Head Master and they have the requisite qualification, experience etc. as required under the rules.

6. On perusal of the impugned judgment passed by the learned Tribunal, we find that the Tribunal set as an appellate authority over the selection committee and went on to hold that respondent Akshay Thakuria is more deserving candidate than the appellant and have directed the respondent authorities to issue the appointment order in favour of the respondent Akshay Thakuria. It seems that the Tribunal was also influenced by the fact that the respondent was serving as graduate teacher from 1975 whereas the present writ petitioner was serving as a graduate teacher from 1979.

7. The learned counsel appearing for the private respondent has also submitted that in spite of the fact that the writ petitioner is deemed to be senior to the private respondent in the said school, the respondent's earlier period of service at the other school cannot be wiped out and was required to