Page No.# 1/8 GAHC010178112024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4499/2024 JATINDRA NATH DEKA S/O- LT. BHOBAN CHANDRA DEKA, R/O- VILL- JAPARKUCHI, P.O. CHOWAKBAZAR, DIST.- NALBARI, PIN- 781334, DISTRICT- NALBARI, ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, SECONDARY EDUCATION, DISPUR, GUWAHATI-6, DISTRICT- KAMRUP (M), ASSAM 2:THE DIRECTOR OF SECONDARY EDUCATION GOVERNMENT OF ASSAM KAHILIPARA GUWAHATI-19 DISTRICT- KAMRUP (M) ASSAM 3:THE INSPECTOR OF SCHOOLS NDC NALBARI DISTRICT- NALBARI ASSAM PIN- 4:THE TREASURY OFFICER NALBARI DISTRICT- NALBARI ASSAM PIN- 781335 5:THE FINANCE DEPARTMENT OF ASSAM Page No.# 2/8 DISPUR GUWAHATI-0 Advocate for the Petitioner : MS. D DEKA, Advocate for the Respondent : SC, SEC. EDU., SC, FINANCE BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 21.04.2025 Heard Mr. J. Roy, learned Senior Counsel, assisted by Ms. D. Deka, learned counsel for the petitioner. Also heard Mr. U. Sarma, learned Standing counsel for the respondent Nos. 1, 2 and 3. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the correctness or otherwise of the order dated 09.10.2023, passed by the Director of Secondary Education, Assam (respondent No. 2), vide memo No. GB-EST/DSE/CC/73/2019/128-A, dated 09.10.2023, and also to direct the respondent No. 2 to consider the date of his seniority w.e.f. his date of joining on 08.04.1994, instead of 01.04.1997. 3. It is to be noted here that vide impugned order dated 09.10.2023, the respondent No. 2 had disposed of the representation filed by the petitioner on 06.07.2015, fixing his seniority w.e.f. 01.04.1997. 4. Mr. Roy, learned Senior Counsel for the petitioner submits that the petitioner was appointed on 07.04.1994, as Hindi Teacher in graduate scale of pay in Karia H.S. School, vide appointment letter dated 07.04.1994 (Annexure-1) for a period of three months or till recommendation of District Level Selection Board, Nalbari, whichever is earlier, in the scale of pay of Rs. 1375/- to 3395/- Page No.# 3/8 per month plus other allowances as admissible under the rules w.e.f. the date of his joining against the newly sanctioned post. Mr. Roy also submits that the post was sanctioned vide Government letter No. 567/91/113, dated 16.11.1991 and D.S.E.S. No. GB/HE/19/92/PT-1/100, dated 12.01.1993 and under office memo No. EST-3/bin/94/256-59, dated 07.04.1994. The petitioner joined on 08.04.1994 and his service was extended on 19.05.1995, until further order. From the date of his joining, he has been receiving regular scale of pay. Mr. Roy further submits that thereafter, some dispute arose between the petitioner and one Amal Kumar Das, with regard to the seniority, and then the petitioner had filed one writ petition, being WP(C) No. 1048/2019, wherein this Court was pleased to issue direction to the respondent authorities to settle the matter within a period of 45 days. Thereafter, on 22.02.2023, the Director of Secondary Education, having considered the date of adjustment in the regular sanctioned post, from Centrally Sponsored Scheme, ordered that the seniority of the petitioner has to be considered w.e.f. 01.04.1997, instead of 08.04.1994. Mr. Roy also submits that as per the gradation list prepared by the Principal, Karia H.S. School, the date of joining of the petitioner has been shown as 08.04.1994. 4.1. Referring to Rule 14(1) and 14(2) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 (‘Rules of 2018’, for short) and also two decisions of two Coordinate Benches of this Court in WP(C) No. 3938/2022 (Minakanta Borgohain vs. the State of Assam and 4 Ors.) and WP(C) No. 2799/2021 (Md. Bilat Ali vs. the State of Assam and 3 Ors.), Mr. Roy submits that the date of seniority has to be counted from which the incumbent concerned receives graduate scale of pay and in the case in hand, the petitioner received the graduate scale of pay from the date of his joining i.e. 08.04.1994 and as such, seniority of the petitioner Page No.# 4/8 has to be counted from the aforementioned date. Also, referring to paragraph No. 17 of the petition, Mr. Roy submits that in a similarly situated case, one Satyendra Sarkar, Hindi Teacher was given the graduate scale of pay from the date of his joining, vide order dated 04.10.2005, which is annexed with this petition as Annexure-14. And as such, Mr. Roy submits that the petitioner herein is discriminated by counting his seniority by the respondent authorities w.e.f. 01.04.1997, instead of the date of his joining and receiving graduate scale of pay from 08.04.1994. Under such circumstances, it is contended to allow this petition. 5. Per contra, Mr. Sarma, learned Standing counsel for the respondent Nos. 1, 2 and 3, by referring to the affidavit-in-opposition, especially to paragraph No. 4, submits that the petitioner was appointed as Hindi Teacher for a period of three months under the Centrally Sponsored Scheme in the scale of pay of Rs. 1375/- to Rs. 3375/- per month plus other allowances as admissible under the rules w.e.f. the date of his joining against the post sanctioned, vide Government letter No. EPG.567/91/113, dated 16.11.1991, communicated vide office letter No. GB-HE/19/92/Pt-I/100, dated 12.01.1993 and was allotted to Karia H.S. School by the Inspector of Schools, Nalbari, vide order dated 07.04.1994 and the petitioner joined on 08.04.1994, and subsequently, his service was extended until further order, vide order dated 19.05.1995. However, subsequently, w.e.f. 01.04.1997, the post of Hindi Teacher allotted to Karia H.S. School was abolished and the petitioner was adjusted in a post allotted to the school against the post of Hindi Teacher created by the Government letter dated 27.03.1998 in the scale of pay of Rs. 1375-30-1435-40-1635-50-1885-EB-30- 2035-60-2395-80-2875-100-3375/- per month plus other allowances as admissible under the rules w.e.f. 01.04.1997, vide office memo No. Page No.# 5/8 GIS/HE/3/98/4, dated 22.05.1998, and that the petitioner was working as Assistant Teacher (Hindi) in the regular scale of pay prior to 01.04.1997, on ad- hoc basis under the Centrally Sponsored Scheme and after abolition of the post of Hindi Teacher (Centrally Sponsored Scheme) allotted to Karia H.S. School, the petitioner was adjusted against a regular post in the scale of pay w.e.f. 01.04.1997, vide office order dated 22.05.1998 and hence, his seniority in Karia H.S. School should be counted w.e.f. 01.04.1997, and there is no illegality or impropriety in the impugned order dated 09.10.2023 (Annexure-9) and therefore, Mr. Sarma has contended to dismiss this petition. 6. Mr. Roy, learned Senior Counsel for the petitioner, in reply to the submission of Mr. Sarma, learned standing counsel for the respondent Nos. 1, 2 and 3, submits that the contention made by the petitioner that he was appointed in the graduate scale of pay as per Annexure-1 on 07.04.1994 and the petitioner joined on 08.04.1994, is not in dispute and though the petitioner was adjusted after abolition of the earlier post, there was no break in his service and from the date of his joining in initial posting, he has been receiving graduate scale of pay and as per rule, his seniority should be counted from the date of his initial posting i.e. on the date of receiving graduate scale of pay i.e. 08.04.1994. 7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 09.10.2023, and also gone through the decisions referred by Mr. Roy, learned Senior Counsel for the petitioner and the relevant Rules i.e. Rule 14(1) and 14(2) of the Rules of 2018. 8. The basic facts herein this petition are not in dispute. The petitioner was appointed vide Annexure-1, dated 07.04.1994 and he joined on 08.04.1994 in the graduate scale of pay. It is also not in dispute that he was appointed in a Page No.# 6/8 sanctioned post and though subsequently, the post was abolished by the Government and he was adjusted in a post allotted to the Karia H.S. School against the post of Hindi Teacher, vide order dated 22.05.1998 (Annexure-3 of the affidavit-in-opposition filed by the respondent Nos. 1, 2 and 3), yet, there was no break in his service. Further, in a similarly situated case, one Satyendra Sarkar, Hindi Teacher was regularized from the date of his joining and the statements and averments in respect of Satyendra Sarkar in paragraph No. 16 of the petition is not disputed by the respondent authorities. Further, the gradation list of the teachers of Karia H.S. School, prepared by the Principal, reveals that the date of joining of the petitioner was 08.04.1994 and in Annexure-12, prepared by the Office of the Inspector of Schools, Nalbari, the name of the petitioner figured at Sl. No. 277 and his date of joining has also been shown as 08.04.1994. 9. Further, a perusal of the Rule 14 of the Rules of 2018, especially the proviso to sub-rule (1) indicates that the seniority of the graduate teacher shall be determined from the date of receiving graduate scale of pay by the respective Assistant Teacher, and the proviso to sub-rule (2) also indicates that the Graduate Teacher shall include the cadre of Assistant Headmaster for the purpose of selection to the post of Headmaster and the seniority of the Assistant Headmaster shall be counted from the date of joining as Graduate Teacher with graduate scale of pay. For ready reference, the aforesaid two sub- rules are reproduced herein below: “14(1) The post of Headmaster of a High School and Superintendent of a High Madrassa shall be filled up by promotion from the candidates amongst the Graduate Teachers as per District-wise seniority list on the recommendation of the District Selection Committee constituted under Rule 16 Page No.# 7/8 (2). The selection of Headmaster and Superintendent shall be based upon seniority and satisfactory Annual Confidential Report for last 3 consecutive years as per procedure provider under sub-rule (3): Provided that the seniority of the Graduate Teacher shall be determined from the date of receiving Graduate scale of pay by the respective Assistant Teacher.” (2) Eligibility for the post of Headmaster/Superintendent in High School/High Madrassa as the case may be shall be as follows – (a) He must be BA/B.Sc./B.Com with B.T./B.Ed. degree from any recognize University. degree from any recognize University. In respect of Hindi Teacher having degree qualification, the Hindi ‘Parangat’ and ‘Nishanar’ shall be considered instead of B.T./B.Ed; (b) He must have at least 10 years of teaching experience as Graduate Teacher: Provided that the Graduate teacher shall include the cadre of Assistant Headmaster for the purpose of selection to the post of Headmaster and the seniority of the Assistant Headmaster shall be counted from the date of joining as Graduate Teacher with graduate scale of pay: Provided further that in case of amalgamated High School where ME/MV school has been amalgamated, the Assistant Headmaster is eligible for selection as Headmaster subject to the condition that the incumbent should have at least 15 years of teaching experience as graduate teacher including the period of service in the erstwhile ME/MV School.” 10. Thus, having examined the impugned order dated 09.10.2023, in the light of the facts and circumstances on the record and discussed herein above and under the Rules of 2018, this Court is of the view that the same fails to withstand the legal scrutiny. In view of the proviso to Rule 14(2) of the Rules of Page No.# 8/8 2018, the seniority of the petitioner has to be counted from the date of his joining as graduate teacher and receiving graduate scale of pay, i.e. w.e.f. 08.04.1994, not from the date of his adjustment i.e. 01.04.1997 in Karia H.S. School. 11. Under the given facts and circumstances, the impugned order dated 09.10.2023, stands set aside and quashed. The respondent No. 2 is directed to count the seniority of the petitioner from the date of his receiving graduate scale of pay i.e. from 08.04.1994. 12. In terms of above, this writ petition stands disposed of. JUDGE Comparing Assistant