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2007 Supreme(Gau) 399
GAUHATI HIGH COURT
Aftab H.Saikia, J.
Uma Kanta Chutia -Appellant
Versus
State of Assam and Ors. -Resopndent
Writ Petition (C) No. 6761 of 2000
Decided On : 05-06-2007
K.H.Choudhury, S.K.Mukhtar, H.Phukan
The main legal point established is that in the absence of rules, seniority is to be reckoned from the date of appointment, and a transfer on the employee's own request cannot confer seniority over the senior-most teacher of the parent school.
Headnote:
Seniority - Transfer of Headmaster - The court held that the transfer of a junior person to the parent school, depriving the senior most teacher of the promotional avenue, cannot be permitted. The court emphasized that in the absence of any rules, seniority is to be reckoned from the date of appointment, and the employee transferred on his own request cannot gain seniority over the senior-most teacher of the parent school.
Fact of the Case:
The petitioner, an Incharge Head Master, sought protection against a transfer order. The respondent No. 5, a Headmaster, was transferred to the petitioner's parent school, despite the petitioner being senior.
Finding of the Court:
The court found that the transfer order depriving the petitioner of the promotional avenue was unjust. The court also considered the absence of rules and the date of appointment to determine seniority.
Issues: The issues involved the validity of the transfer order and the seniority of the petitioner over the transferred Headmaster.
Ratio Decidendi: The court decided that the transfer order deserved interference as it deprived the senior most teacher of the promotional avenue, and the transferred employee could not gain seniority over the senior-most teacher of the parent school.
Final Decision: The writ petition succeeded, and the impugned order was quashed and set aside.
Mr. S.K. Muktar, learned counsel for the petitioner. Also heard Ms. H. Phukan, learned counsel appearing for the official respondents.
2. None appears on behalf of respondent No. 5 though the names of the learned counsel representing the respondent No. 5 have been duly reflected on the board of the regular cause list (Part-ID dated 4.6.2007 to 29.6.2007 in Civil Bench No. IV.
3. This matter has been pending since 2000.
4. At the time of admission of this writ petition, this court by order dated 12.2.2000 grandted interim protection to the petitioner providing as under :
"In the interim it is provided that the transfer order dated 1.12.2000 (Annexure-D) shall not be acted upon and the petitioner shall be allowed to continue as Incharge Head Master of Bogidole High School till the interim matter is heard."
5. A Misc. Application being Misc. Case No.1472 of 2001 was moved under article 226(3) of the Constitution of India seeking vacation of the above interim order dated 12.12.2000. However, after hearing the learned counsel for the parties, this court by order dated 26.31.2001 in Misc. Case No. 1472/2001 opined that in case the interim order, as prayed for. was vacated, the writ petition would become infructuous and accordingly the prayer for vacating the interim order was rejected.
6. On close perusal of the materials made available including the impugned transfer order dated 1.12.2000, it appears that the transfer of respondent No.5, Sri Joga Mohan Baruah, Headmaster, Hatipati High School, (for short, the original school') in the district of Sibasagar was made on his own request to the Bogidal High School (for short, 'the parent school') in the same district of Sibasagar wherein the petitioner has already been working admittedly as a Senior Teacher.
7. It also transpires from the perusal of the record that the petitioner's parent school was provincialised on 23.2.1980 and the service of the petitioner was also provincialised as Graduate Assistant Teacher having B.T. Degree with effect from 23.2.1980 whereas the original school of the respondent No. 5 was provincialised on 19.11.1991 an consequently the service of the respondent No. 5 was encarded as Graduate Teacher on 19.11.1991 and as such admittedly the petitioner is senior over the respondent No.5.
8. It is contended on behalf of the petitioner that the prospect of promotional avenue of a founder and senior most teacher cannot be thwarted by way of a transfer of a Junior person to the parent school and that too on the request of the transferee himself. Here in the instant case it is stated that when the petitioner is admittedly a senior most person and the respondent No. 5 is a junior person such transfer to the parent school in the post of Headmaster itself to deprive the petitioner of such post in the parent school cannot be permitted.
9. To drive this point home, reliance has been placed on a decision of this court reported in Ghana Kanta Das v. State of Assam & Ors., 1996 (1) GLJ 360. In the above cited case in paragraph 7 it was observed that senior most teacher in that school would not be derived of promotion by transferring person from other school. In the case in hand, no material whatsoever including the relevant legal position has been placed to show that by transfer on his own request from the original school to the parent school, the employee can get his seniority over the senior-most teacher of the parent school. It is settled that in absence of any rules, the seniority of an employee is to be reckoned from the date of this appointment. In the instant case, the service of the petitioner was encarded on 23.2.1980 when the respondent No.5's service was provincialised on 19.11.1991. The respondent No. 5 cannot, therefore, be entitled to get sonority over the petitioner.
10. Having considered the factual premises of the instant case in its entirely and also in view of the proposition of law laid down in the above
