Md. Bilat Ali vs The State Of Assam And 3 Ors
2021 Latest Caselaw 1659 Gua

                                                                 Page No.# 1/11

GAHC010075362021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/2799/2021

         MD. BILAT ALI
         IN-CHARGE SUPERINTENDENT, SUTARPARA, MAJORGAON HIGH
         MADRASSA SCHOOL, GOALPARA, S/O- LT. SABER UDDIN SHEIKH, VILL-
         GARUPORATARI, P.O. SUTARPARA, P.S. MATIA, DIST.- GOALPARA, ASSAM,
         PIN- 783125



         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         TO BE REP. BY THE COMM. AND SECY., EDUCATION (SECONDARY)
         DEPTT., ASSAM, DISPUR, GHY-06

         2:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19

         3:THE INSPECTOR OF SCHOOLS
          GDC
          GOALPARA
          DIST.- GOALPARA
         ASSAM
          PIN-783101

         4:MD. KAZRUL ISLAM
         ASSTT. TEACHER OF SUTARPARA MAJORGAON HIGH MADRASSA
         SCHOOL
          GOALPARA
          P.O. SUTARPARA
          P.S. MATIA
          DIST.- GOALPARA
         ASSAM
                                                      Page No.# 2/11

             PIN-78312

Advocate for the Petitioner   : MR. A MANNAF

Advocate for the Respondent : SC, SEC. EDU.




             Linked Case : I.A.(Civil)/1062/2021

            KAZRUL ISLAM
            S/O. SHAH ALOM SHEIKH
            R/O. VILL. MAJORGAON (POKALAGI)
            P.O. SUTARPARA
            P.S. MATIA
            DIST. GOALPARA
            ASSAM
            PIN- 783125


             VERSUS

            BILAT ALI AND 3 ORS.
            IN-CHARGE SUPERINTENDENT
             SUTARPARA
             MAJORGAON HIGH MADRASSA SCHOOL
             GOALPAR
             S/O- LT. SABER UDDIN SHEIKH
             VILL. GARUPORATARI
             P.O. SUTARPARA
             P.S. MATIA
             DIST. GOALPARA
             ASSAM
             PIN- 783125

            2:THE STATE OF ASSAM
            REP. BY THE COMM. AND SECY.
             EDUCATION (SECONDARY) DEPTT.
            ASSAM
             DISPUR
             GHY-19
             3:THE DIRECTOR OF SECONDARY EDUCATION
            ASSAM
             KAHILIPARA
             GHY-19
                                                                         Page No.# 3/11

           4:THE INSPECTOR OF SCHOOLS
           GDC
           GOALPARA
           DIST.- GOALPARA
           ASSAM
           PIN-783101
           ------------

Advocate for : MR. M A SHEIKH Advocate for : SC SEC. EDU. appearing for BILAT ALI AND 3 ORS.

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

JUDGMENT AND ORDER (CAV)

15.07.2021

Heard Mr. M.A. Sheikh, learned counsel for the applicant. Also heard Mr. A. Mannaf, learned counsel for the opposite party no.1 (writ petitioner) and Mr. R. Mazumdar, learned standing counsel for the proforma opposite party nos. 2 to 4 (i.e. respondent nos. 1 to 3 in the writ petition).

2) By filing this application, the applicant, who was arrayed as respondent no.4 in the connected writ petition is seeking alteration/ modification/ variation of the order dated 22.04.2021 and 27.04.2021, thereby directing status quo to be maintained.

3) In the connected writ petition, the case of the opposite party no.1, in brief, is that he had joined service in Sutarpara Majorgaon High Page No.# 4/11

Madrassa School under Goalpara District, which was provincialised w.e.f. 01.01.2013. Thereafter by virtue of order dated 31.03.2017 passed by the opposite party no.2, the following schools, namely, (i) Sutarpara Majergaon M.E. School, and (2) Bhagyapur L.P. School located in the same premises was amalgamated with Sutarpara Majorgaon High Madrassa under the scheme called Siksha Khetra Scheme, providing thereby that the amalgamated schools would be known as Sutarpara Majergaon High Madrassa. It may be mentioned that although in some documents, the name of the said school is mentioned as "Sutarpara Majorgaon High Madrassa" but in some other documents, the name of the said school in mentioned as "Sutarpara Majergaon High Madrassa". On and from 01.01.2020 till 31.10.2020, the regular Superintendent of the said school took earned leave and accordingly, vide order dated 04.02.2020, as a purely temporary arrangement, the opposite party no.2 had allowed the opposite party no.1 to hold the charge of In-Charge Superintendent of the said school along with financial power to draw and disburse the salary, etc. of the staff along with his other duties as Assistant Teacher under F.R.49(c) vice the Superintendent, who was on earned leave.

4) Thereafter, as a temporary arrangement, vide order dated 12.04.2021, the opposite party no.2 had allowed the applicant to hold the charge of In-Charge Superintendent of the said school along with financial power to draw and disburse the salary, etc. of the staff along with his other duties as Assistant Teacher under F.R.49(c) vice the opposite party no.1, who was relieved of his charge. Accordingly, the aggrieved opposite party no.1 had filed the connected writ petition with a prayer to set aside and quash the said order no. GB-EST/Apptt/FP/13/2021/16 dated 12.04.2021. The opposite party Page No.# 5/11

no.1 had also prayed for a direction not to cause any undue interruption in respect of the office order no. GB-EST/Apptt/FP/49/ 2017/169 dated 04.02.2020 allowing him to hold the charge as In-charge Superintendent of the said school. This Court vide interim order dated 22.04.2021 had directed status-quo as on date to be maintained. By order dated 27.04.2021, the interim status quo order was extended till the next returnable date by directing that the case be listed after 6 (six) weeks and at the same time permitting the respondents in the said writ petition the liberty to come up for modification of the order. Accordingly, the applicant has moved this application for modification of the said two orders.

5) It is projected by the applicant that by order dated 09.01.1992 passed by the District Elementary Education Officer, Goalpara, the applicant and 48 others were appointed as Science graduate teacher and the applicant was posted at Sutarpara Majergaon ME School and the applicant joined in the said post on 10.01.1992. Thereafter, as indicated herein before the two schools in the same premises were merged with Sutarpara Majergaon High Madrassa. By referring to the seniority list of teachers as on 08.02.2021, the learned counsel for the applicant has submitted that the then In-charge Superintendent Sutarpara Majergaon High Madrassa had prepared a seniority list of teachers and placed the name of the writ petitioner at serial no.1 and the name of the applicant was placed at serial no.6 by ignoring that the petitioner had joined as Graduate Teacher (Science) on 10.01.1992, and that he had been receiving graduate scale of pay from that date, whereas the opposite party no.1 had received graduate scale of pay at a much later date on 01.01.2013. It is submitted that on all counts the applicant was senior to the opposite party no.1 and was qualified to hold the post of Superintendent of the said school and it is Page No.# 6/11

submitted that the same criteria should be applied also for the purpose of appointing an In-charge Superintendent.

6) Opposing this interlocutory application, the learned counsel for the opposite party no.1 submits that the opposite party no.1 had joined the Sutarpara Majergaon High Madrassa as Assistant Teacher on 18.05.1987 and, as such he is the senior most teacher. It is submitted that the applicant had joined the Sutarpara Majergaon High Madrassa only after amalgamation and could not claim seniority over the opposite party no.1. The learned counsel for the opposite party no.1 has referred to the provisions of Rule 2(g), 14, and 15 of Assam Secondary Education (Povincialised Schools) Service Rules, 2018 and it is submitted that as the applicant had joined the Sutarpara Majergaon High Madrassa only in the year 2017, he does not have the requisite experience of 10 (ten) years as provided for in Rule 14(2)(b) of the said 2018 Rules, but the applicant only has 8 (eight) year's experience. By referring to the provisions of Rule 15(2)(b) of the said 2018 Rules, it is further submitted the applicant is not even qualified to hold the post of Assistant Headmaster/ Assistant Superintendent.

7) The learned standing counsel for the opposite party nos. 2 to 4 has made his submissions in support of the impugned order dated 12.04.2021. By referring to the provisions of Rule 24(5) of the 2018 Rules, it is submitted that the applicant satisfied all the requisite criteria required to be appointed as In-Charge Superintendent, pending a regular appointment to the said post.

8) Having heard the learned counsel for the applicant, opposite Page No.# 7/11

party no.1 and opposite party nos. 2 to 4, the materials available on record has been perused.

9) It is seen from Annexure-G of this interlocutory application that vide order under Memo dated 29.09.2020, issued by the Director, SCERT, Assam and Principal i/c, DIET, Goalpara, Dudhnoi that amongst others, the applicant who was on deputation to DIET was released in the afternoon of 29.09.2020 to enable them to join their respective schools as they had completed 2 year B.Ed. course (under G.U.) from the said Institute. The name of the applicant appears at serial no. 3 thereof. Accordingly, as per Annexure-J of the interlocutory application, the applicant had joined the said Sutarpara Majorgaon High Madrassa on 01.10.2020. Thereafter, the applicant had moved the competent authority to allow him to hold the charge of Superintendent of the said school considering his seniority and other criteria. This was followed by inter- departmental communication and the order dated 12.04.2021, which is impugned in the connected writ petition came to be issued.

10) Therefore, on examining the materials available on record, it was seen that by order dated 11.07.2018, issued by the opposite party no.2, the applicant was released from Sutarpara Majergaon High Madrassa to undergo 2 year B.Ed. Course (from G.U.) from DIET, Goalpara and that after successfully acquiring B.Ed. degree, he had joined back in the said school on 01.10.2020. Therefore, at the time when the opposite party no.1 was appointed as In- Charge Superintendent by order dated 04.02.2020, the applicant was on deputation and that during the deputation period, the applicant was in the roll of the said school and was drawing his salary from the said Sutarpara Page No.# 8/11

Majergaon High Madrassa.

11) It would be appropriate to quote the provisions of Sub-Rule (5) of Rule 24 of the said 2018 Rules, which is as follows -

"In case of amalgamation of ME/MV/LP School with the other Higher Secondary School/ High School under the scheme Siksha Khetra, the employees of the amalgamated school shall be given seniority with effect from the date of joining on substantive appointment or regularisation:

Provided that in case of Graduate Teachers the seniority shall be counted from the date of getting salaries meant for a Graduate Teachers:

Provided further that in case of contractual teachers the seniority shall be counted from the date of absorbtion in the sanctioned post carrying regular time scale of pay."

12) It is seen that as per proviso to Sub-Rule (1) of Rule 14 of the said 2018 Rules, it is provided therein that the seniority of the Graduate Teacher shall be determined from the date of receiving Graduate Scale of pay by the respective Assistant Teacher. Therefore, by reading the proviso to Sub-Rule (5) of Rule 35 together with Sub-Rule (1) of Rule 14 of the said 2018 Rules, the Court is of the considered opinion that as the learned counsel for the applicant has been able to successfully demonstrate that the applicant had undergone a selection process by the Sub Divisional Level Advisory Board for Elementary Education, Goalpara and was appointed as Science Graduate Teacher (Maths) and posted in the Sutarpara Majergaon M.E. School and that the appointment order dated 09.01.1992 clearly indicates that the name of the applicant appears in serial no. 40 and that the posts where appointments were made thereunder Page No.# 9/11

was created vide Government sanction order dated 16.11.1992. The learned counsel for the applicant has also successfully demonstrated from the said Annexure-4 of the writ petition filed by the opposite party no.1 that while the applicant had received graduate scale on 10.01.1992, i.e. the date of his joining of the applicant, the date from when the opposite party no.1 had received graduate scale of pay was 01.01.2013.

13) On a pointed query by the Court, the learned standing counsel for the Secondary Education Department had fairly submitted that in view of the proviso to Sub-Rule (1) of Rule 14 read with Sub-Rule (5) of Rule 24 of the 2018 Rules, the date of joining is not so much material for determining seniority as is the date on which graduate scale of pay is received. Accordingly, it is seen that the learned standing counsel for the opposite party nos. 2 to 4 has been able to successfully justify that part of the order dated 12.04.2021, impugned in the writ petition wherein it has been mentioned that - "On perusal of available records, it is found that Md. Kazrul Islam, B.Sc., B.Ed., Assistant Teacher with date of receiving Graduate Scale of Pay w.e.f. 10.01.1992 is the senior most qualified teacher amongst the teaching staff of the Sutarpara Majorgaon High Madrassa."

14) One of the grounds of attack against the order dated 12.04.2021 was made by learned counsel for the opposite party no.1 by submitting that the applicant had joined the Sutarpara Majorgaon High Madrassa in the year 2017 by virtue the Government order of amalgamation dated 31.03.2017, as such, the applicant did not have the qualifying experience. In that regard, the Court is inclined to hold that the said submission by the learned counsel for the opposite Page No.# 10/11

party is ex facie either in ignorance of the herein before referred Sub-Rule (5) of Rule 24 of the 2018 Rules, or the said submission of the learned counsel for the opposite party is intended to mislead the Court.

15) Therefore, on both the counts of experience and seniority, the applicant is found to have a better claim to be appointed to the post of In- Charge Superintendent of Sutarpara Majorgaon High Madrassa.

16) In view of the discussions above, the applicant has been able to make out a strong case for modification/ variation/ alteration of the interim status quo granted by order dated 22.04.2021 as extended by order dated 27.04.2021. Accordingly, this interlocutory application deserves to be and is hereby allowed. The ad interim order of status quo as granted by order dated 22.04.2021 as extended by order dated 27.04.2021 stands recalled, revoked and rescinded.

17) It is clarified that there would be no impediment for the opposite party nos. 1 to 4 to act in accordance with the order under memo no. GB- EST/Apptt/FP/13/2021/16 dated 12.04.2021 passed by the Director of Secondary Education, Assam (opposite party no.2). This application stands allowed.

JUDGE Page No.# 11/11

Comparing Assistant