Page No.# 1/ vs The State Of Assam And 5 Ors
2025 Latest Caselaw 5621 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 5 Ors on 23 June, 2025

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GAHC010245522024




                                                                    2025:GAU-AS:8318

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

                               Case No. : WP(C)/6213/2024

            SANJOY KUMAR TALUKDAR S/O- LATE DHIREN TALUKDAR,
            VILLAGE- KAHARPARA, P.O.- SARUPETA, DISTRICT- BAJALI (ASSAM),
            PIN- 781318.

            VERSUS

            THE STATE OF ASSAM AND 5 ORS
            REPRESENTED BY COMMISSIONER AND SECRETARY,
            GOVERNMENT OF ASSAM,
            DEPARTMENT OF EDUCATION (SECONDARY),
            DISPUR, GUWAHATI- 06.

            2:THE DIRECTOR SECONDARY EDUCATION ASSAM
             KAHILIPARA GUWAHATI-19.

            3:THE INSPECTOR OF SCHOOLS BARPETA DISTRICT CIRCLE
             BARPETA P.O.- BARPETA DISTRICT- BARPETA (ASSAM)
             PIN- 781301.

            4:THE PRINCIPAL (I/C) BHAWANIPUR H.S. SCHOOL
             P.O.- BHAWANIPUR DISTRICT- BARPETA (ASSAM)
             PIN- 781352.

            5:PARBANANDA DAS HINDI TEACHER BHAWANIPUR H.S. SCHOOL
             P.O.- BHAWANIPUR DISTRICT- BARPETA (ASSAM)
             PIN- 781352.

            6:ASHOK DAS PRINCIPAL (I/C) BHAWANIPUR H.S. SCHOOL
             P.O.- BHAWANIPUR DISTRICT- BARPETA (ASSAM)
             PIN- 781352

Advocate for the Petitioner   : MD S HOQUE, MS B A AHMED,MS A BEGUM,MR. M DEKA

Advocate for the Respondent : SC, SEC. EDU., MS. J BATHARISA(R-6,4),MR D K ROY(R-
                                                                            Page No.# 2/10

6,4),MR N ISLAM(R-5),MR K BHUYAN(R-5),MR H A AHMED (R-5)

           Linked Case : WP(C)/4903/2024

          PARBANANDA DAS S/O- LATE KANDARPA KUMAR DAS
          VILLAGE- BHAWANIPUR P.O.- BHAWANIPUR DISTRICT- BARPETA
           (ASSAM) PIN- 781352.

           VERSUS

          THE STATE OF ASSAM AND 3 ORS
          REPRESENTED BY COMMISSIONER AND SECRETARY
          GOVERNMENT OF ASSAM DEPARTMENT OF EDUCATION (SECONDARY)
          DISPUR GUWAHATI-6.

          2:THE DIRECTOR SECONDARY EDUCATION ASSAM
          KAHILIPARA GUWAHATI-19.

           3:THE INSPECTOR OF SCHOOLS BARPETA
          P.O.- BARPETA DISTRICT- BARPETA (ASSAM) PIN- 781301.

          4:ASHOK DAS ASSISTANT TEACHER BHAWANIPUR H.S. SCHOOL
          P.O.- BHAWANIPUR DIST.- BARPETA (ASSAM) PIN- 781352.
          ------------

Advocate for : MR K BHUYAN Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 3 ORS

:::BEFORE:::

HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of hearing : 23.06.2025 Date of Judgment : 23.06.2025

Judgment & order(Oral)

Heard Mr. S. Hoque, learned counsel for the petitioner in WP(C).No.6213/2024 and Mr. K. Bhuyan, learned counsel for the petitioner in WP(C)/4903/2024 and respondent no.5 in WP(C)/6213/ 2024. Also heard Mr. U. Sharma, learned Standing Counsel, Secondary Education Department, appearing for the State Respondents in the above noted 2(two) writ petitions, and Mr. D. K. Roy, learned counsel appearing for respondent no.6 in WP(C)/ 6213/2024.

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2. The petitioners in the above noted 2(two) writ petitions have staked a claim for holding of the charge of the post of Principal of Bhawanipur Higher Secondary School. The petitioners in both the above noted writ petitions have projected that they having possessed the requisite eligibility criteria for promotion to the post of Principal of a provincialised Higher Secondary School, on regular basis, considering their respective seniority, they are eligible to hold the post of Principal of the school in question on in-charge basis.

3. The facts in brief, requisite for adjudication of the issue arising in the above 2(two) writ petitions is noticed as under;

The petitioner, herein, Sanjoy Kumar Talukdar has projected that he was appointed as an Assistant Teacher at Bhawanipur Higher Secondary School vide an order dated 06.12.1999 and had joined his services in the said school w.e.f. 17.12.1999. The petitioner projects that since the date of his initial appointment, he was authorized the graduate scale of pay. It is projected in the writ petition that the respondent no.5 Parbananda Das, a Hindi Teacher was transferred to the school of the petitioner vide an order dated 31.05.2001 and in the said order of transfer, a stipulation was incorporated to the effect that the transfer being so effected on his own request, he would not be entitled to claim seniority over the other existing Assistant Teachers in the said school. The writ petitioner further projects that the incumbent in the post of Principal of the said school on the eve of his retirement had prepared a seniority list of the Assistant Teachers of the said school and therein had placed the petitioner below the respondent no.5, although the respondent no.5 was not entitled to be placed above the petitioner in the said seniority list in view of the condition existing in his order of transfer. The petitioner further projects that the Director of Secondary Education, Assam, vide an order dated 02.07.2024, had allowed the Jurisdictional Inspector General of Schools to hold the charge of the Principal of the school in question along with Page No.# 4/10

the financial power. The Inspector of Schools, on assuming the charge of the post of Principal of the school in question, is contended to have issued an order dated 06.07.2024 allowing the respondent no.6, herein Ashok Das, a Junior Assistant Teacher of the school to look after the academic side until further orders. Being aggrieved, the respondent no.5 had instituted the present writ petition.

The petitioner herein, Parbananda Das, has projected that he was initially appointed as a Junior Hindi Teacher at Uttar Barpeta High School on 04.08.1985. Thereafter, his services were regularized w.e.f. 11.08.1995 vide issuance of an order dated 02.03.2001. The petitioner further projects that he was vide an order dated 31.05.2001, transferred from Uttar Barpeta High School to Bhawanipur Higher Secondary School at his own request. The petitioner also projects that although, in the order dated 31.05.2001, a stipulation was made that he cannot claim seniority over the existing staff of the Bhawanipur Higher Secondary School, the said stipulation would be of no consequence given the fact that the petitioner was transferred to a post in the same cadre. Accordingly, it is contended that the assignment of the seniority position to the petitioner in the seniority list prepared of the Assistant Teachers in the school above the petitioner in WP(C).No.6213/2024, who had admittedly drawn his graduate scale of pay after the petitioner herein; would not mandate any interference by this Court. The petitioner has also assailed the order dated 02.07.2024 by which the Director of Secondary Education, Assam, had permitted the Jurisdictional Inspector of Schools to hold the charge of the Principal of School entrusted and the order dated 06.07.2024, by which Shri Ashok Das, respondent no.4, a Junior Assistant Teacher, was allowed to hold the charge of the post of Principal of the said school. Accordingly, the petitioner submits that the seniority of the petitioner being determined, appropriate directions is required to be issued to the Director of Secondary Education, Assam to allow the petitioner to hold the charge of the post of Principal of the school in question till the same is so filled up by way of a regular selection process.

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4. Mr. S. Hoque, learned counsel for the petitioner Sanjoy Kumar Talukdar in WP©.No.6213/2024 by reiterating the facts projected in the writ petition, has submitted that the seniority list published by the incumbent in the post of principal of the school in question on the eve of his retirement, would mandate an interference inasmuch as, therein, seniority position of Sanjoy Kumar Talukdar has been assigned below that of the petitioner in WP(C).No.4903/2024 i.e Parbananda Das, inasmuch as Parbananda Das could not have been assigned seniority above the petitioner in WP©.No.6213/2024, in view of the stipulation made in his order of transfer dated 31.05.2001, while posting him as Hindi Teacher in Bhawanipur Higher Secondary School to the effect that he cannot claim seniority over the existing staff of the school. It is contended by Mr. Hoque, that on the date, when Parbananda Das had joined Bhawanipur Higher Secondary School, the petitioner Sanjoy Kumar Talukdar was already an existing teacher in the said school. The learned counsel for the petitioner had submitted that although he had assailed the order dated 06.07.2024 allowing Ashok Das i.e. the respondent no.6 in writ petition no.6213/2024, to hold the charge of the post of the Principal, the said prayer would not mandate any further consideration, inasmuch as vide an order dated 17.03.2023, the jurisdictional Inspector of Schools in cancellation of his earlier orders, has now permitted said Sanjoy Kumar Talukdar to act as the academic in-charge of the school, in question, until further orders.

5. Mr. Hoque, learned counsel further submits that given the admitted position with regard to the seniority between the teachers existing in the said school, it is Sanjoy Kumar Talukdar, who is the senior most and accordingly, directions are required to be issued to the Director of Secondary Education, Assam, to allow Sanjoy Kumar Talukdar to function as the Principal of the school in question.

6. Mr K. Bhuyan, learned counsel appearing for the petitioner in WP(C).No.4903/2024 has submitted that the petitioner Parbananda Das had Page No.# 6/10

drawn the graduate scale of pay prior to the drawal of the scale by the petitioner Sanjoy Kumar Talukdar. It is projected that the petitioner Parbananda Das had drawn the graduate scale of pay with effect from 11.08.1995, while Sanjoy Kumar Talukdar had drawn such scale of pay only w.e.f.,06.12.1999. Accordingly, it is submitted by Mr. K. Bhuyan that with regard to the date of drawal of the graduate scale of pay, it is the petitioner represented by him i.e. Parbananda Das who would be senior to Sanjoy Kumar Talukdar. With regard to the stipulation made in his order of transfer dated 31.05.2001 to the effect that the transfer being so effected at his own request, Parbananda Das would not be entitled to seniority over the existing staff of the said school, Mr. K. Bhuyan, learned counsel, submits that the said prescription is of no consequence inasmuch as the transfer of the petitioner was effected within the same cadre and accordingly, the said transfer will not have the effect of wiping out the length of service rendered by Parbananda Das in his earlier school till the date of his transfer and the earlier service rendered by Parbananda Das has to be reckoned for the purpose of assigning to him, his seniority in Bhawanipur Higher Secondary School. In support of his such submission, the petitioner had relied upon the decision of the Hon'ble Supreme Court in the case of K.P. Sudhakaran and Another Vs. State of Kerala & ors. [reported in 2006 (5) SCC 386].

7. Mr. U. Sharma, learned Standing Counsel, Secondary Education Department, submits that the petitioner in WP(C).No.4903/2024 would not be entitled to count his seniority over the existing staff working in Bhawanipur Higher Secondary School in view of the clear stipulation made in this connection in his order of transfer dated 31.05.2001. It is submitted by the learned Standing Counsel that the said stipulation as mentioned in the order of transfer of the petitioner in WP(C). No.4903/2024 has not been challenged by him even the present proceedings.

8. In the above premises, the Learned Standing Counsel submits that Page No.# 7/10

Parbananda Das cannot claim seniority over Sanjoy Kumar Talukdar.

9. The learned Standing Counsel has further submitted that the grievance of the petitioner in WP(C).No.6213/2024 of the respondent no.6, therein, being not allowed to act as academic in-charge of the school in question by the Inspector of Schools vide issuance of order dated 06.07.2024, would not mandate any further consideration inasmuch as the jurisdictional Inspector of Schools in cancellation of the order passed by him in this connection on 06.07.2024; had issued a fresh order dated 01.03.2025 allowing the petitioner in WP(C). No.6213/2024 to function as the academic in-charge of the school in question.

10. Mr. D. K. Roy, learned counsel appearing for the respondent no.6 in WP(C).No.6213/2024 has submitted that the order allowing the respondent no.6 to function as the academic in-charge of the school being already cancelled; he would have no objection, in the event, the claim of the writ petitioner in WP(C).No.6213/2024, is accepted by this Court.

11. I have heard the learned counsel for the parties and also perused the materials available on record.

12. The issue involved in the present proceeding is with regard to the holding of the charge of Principal of Bhawanipur Higher Secondary School. Accordingly, for the purpose of adjudication of the said issue, in the present order, facts are taken from WP(C).No.6213/2024 and the parties are also being described as they appear in the said writ petition being WP(C).No.6213/2024.

13. The petitioner Sanjoy Kumar Talukdar admittedly was appointed as an Assistant Teacher in the graduate scale of pay on 06.12.1999 and he had joined his services w.e.f. 17.12.1999, and accordingly, the seniority of the said petitioner would be reckonable from 17.12.1999 in the school in question.

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14. On the other hand, the respondent no.5, therein, Parbananda Das was initially appointed as a Junior Hindi Teacher w.e.f. 04.08.1995 in the intermediate scale of pay and he had joined his services w.e.f. 11.08.1995. Subsequently, the service of the respondent no.5 was regularized w.e.f. 11.08.1995 and was extended with the graduate scale of pay. Thereafter the respondent no.5, on his own request, was, vide order dated 31.05.2021, transferred from Uttar Barpeta High School to Bhawanipur Higher Secondary School. In the said order of transfer the following stipulation was so incorporated.

"He cannot claim seniority over the existing staff of the school."

15. Although with regard to the date of drawal of graduate scale of pay, it is Parbananda Das (respondent no.5), who would be senior to the petitioner namely Sanjoy Kumar Talukdar, however, he having joined Bhawanipur Higher Secondary School, on his own request with the stipulation as noticed hereinabove, in pursuance to the order dated 31.05.2001; the petitioner Sanjoy Kumar Talukdar being an existing teacher in Bhawanipur Higher Secondary School on the date of such joining by the respondent no.5 therein; the respondent no.5 cannot claim seniority over the petitioner Sanjoy Kumar Talukdar. The Director of School Education, Assam, has filed an affidavit in the matter and therein, has made categorical contention to the effect that the respondent no.5 being transferred on his own request, vide order dated 31.05.2001, and having joined the said school on 04.06.2001; his seniority in Bhawanipur Higher Secondary School would be reckonable only w.e.f. 04.06.2001.

16. The Director of Secondary Education, Assam, has further contended in the said affidavit that the B.Ed. degree acquired by the respondent no.5, was so acquired in distance mode from Lalit Narayan Mithila University by him during his service period. The said degree acquired by the respondent no.5 being not found to have been so acquired in the manner required, it is projected that a departmental proceeding on the issue, has already been instituted against the Page No.# 9/10

respondent no.5, vide issuance of show-cause notice on 11.07.2024. The said departmental proceedings is currently pending against the said respondent no.5. It is to be noted that the respondent no.5 has not assailed the said show-cause notice, although the writ petition filed by him being WP(C).No.4903/2024 was so filed after issuance of the said show-cause notice.

17. In view of the discussion made in the foregoing paragraphs, this Court is of the considered view that in Bhawanipur Higher Secondary School, it would be Sanjoy Kumar Talukdar (petitioner in WP(C).No.6213/2024) who would be senior to Parbananda Das (petitioner in WP(C).No.4903/2024). Sanjoy Kumar Talukdar having been projected to posses the requisite qualification for being considered for promotion, on regular basis, as Principal in provincialised Higher Secondary Schools of the State, he is held to be entitled to hold the charge of the post of Principal in Bhawanipurr Higher Secondary School.

18. Parbananda Das (petitioner in WP(C).No.4903/2024) in view of the stipulation made in the order dated 31.05.2001, as well as the initiation of departmental proceedings against him vide the show-cause notice dated 11.07.2023, would not be entitled to a direction for being so considered to hold the charge of the post of Principal of Bhawanipur Higher Secondary School.

19. Accordingly, at this stage the decision relied upon by the learned counsel for the petitioner in WP(C).No.4903/2024 in the case of K.P. Sudhakaran (supra), is being considered.

20. On a perusal of the said decision, this Court is of the considered view that the same would not advance the case of the petitioner in WP©.No.4903/2024. The said petitioner having been so transferred on his own request, he will have to forego his seniority till the date of his transfer and will be placed below the junior most employee in the same category in the transferred school. The same is Page No.# 10/10

required to be so followed inasmuch as a teacher on being transferred to another school for his personal consideration; cannot be permitted to disturb the seniority of the existing teachers in the transferred school by claiming that his service in the earlier school is also to be reckoned for the purpose of assigning to him seniority in the transferred school.

21. In view of the above discussion, the Director of Secondary Education, Assam, is directed to issue consequential orders allowing Sanjoy Kumar Talukdar (petitioner in WP(C).No.6213/2024) to hold the charge of the post of Principal of Bhawanipur Higher Secondary School. The consequential order now required to be issued in the matter by the Director of Secondary Education, Assam be so issued within a period of 1(one) month from today. Till issuance of such order, the Inspector of Schools, Barpeta be permitted to continue to hold the charge of the post of Principal of the school in question.

22. With the above observations and directions the writ petition being WP(C).No.6213/2024 stands allowed. However, WP(C).No. 4903/2024 stands dismissed. There shall be no order as to costs.

JUDGE

Comparing Assistant