In-Charge Headmaster Should Be Appointed Based On Seniority-Cum-Efficiency : Gauhati HC

Background Facts

The petitioner was appointed as a Science Graduate Teacher in Jhowdanga M.E. School under the Block Elementary Education Officer. He joined the post on 11.02.1994 at 09:45 a.m. The respondent was also appointed on the same date. He joined as a Hindi Teacher in the same school. Later, the petitioner was transferred to different schools in the years 2000, 2003 & 2004 in the interest of public service. After release from CRCC (Cluster Resource Centre Coordinator) duties, the petitioner rejoined Jhowdanga M.E.M. School on 19.09.2023. On 22.10.2024, the District Elementary Education Officer passed an order allowing respondent to act as the In-Charge Headmaster cum Member Secretary of Jhowdanga M.E. School. He was given full financial powers. The District Elementary Education Officer cited a seniority list that showed respondent's name above that of the petitioner.

Aggrieved by the same, the petitioner filed the writ petition. While the petition was pending, the petitioner was again transferred to Urar Bhui M.E. School via order dated 11.11.2024. He was made In-Charge Headmaster there. He challenged this transfer order and the court granted an interim stay on 18.11.2024.

It was submitted by the petitioner that both the petitioner and respondent joined service on the same day. The petitioner's date of birth was 24.01.1968, which made him senior to respondent, whose date of birth was 27.11.1972. As per the joining reports, the petitioner was older and had joined earlier in time. Therefore, petitioner should have been considered senior. It was further submitted that the seniority list relied upon by the respondents was prepared arbitrarily to deprive the petitioner of his rightful claim. The petitioner also relied upon the notification dated 02.03.2010 issued by the Government of Assam, which clearly laid down that appointment to the post of Headmaster in Middle Schools shall be made on the basis of seniority-cum-efficiency. It was also stated that even petitioner was transferred to other schools in the public interest, his seniority would never be lost. It was also stated by the petitioner that his transfer order was passed by the ADC (Edu.) cum In-Charge DEEO, South Salmara Mankachar, who had no authority to issue the inter-school transfer on any ground in view of the provision of the Sections 5(5)(6) and 6(d) of the Assam Elementary and Secondary School Teachers' (Regulation of Posting and Transfer) Act, 2020.

On the other hand, it was submitted by the respondent that there were multiple complaints regarding the petitioner's performance and conduct from the School Management Committee and the guardians, therefore the post of In-Charge Headmaster was assigned to respondent. The appointment was made on a temporary basis in the best interests of the school's functioning. It was further submitted that the seniority list, which was prepared by the previous Headmaster and approved by the Block Elementary Education Officer (BEEO), clearly placed respondent above the petitioner.

Findings of the Court

It was observed by the court that both the petitioner and respondent had joined their respective posts on the same date i.e. 11.02.1994. However, the petitioner had joined at 09:45 a.m., whereas the respondent had joined later at 10:00 a.m. It was held that in situations where candidates join service on the same day, seniority must be determined on the basis of age. Therefore, the petitioner being older by 4 years, 10 months, and 3 days, is to be treated as senior. The judgment of D.P. Das vs. Union of India, was relied upon wherein it was held that for determination of seniority of the incumbents, who were recommended on the same date, age is the only valid and fair basis and therefore, their seniority should be decided on the basis of the age of the candidates.

It was further observed by the court that the seniority list prepared by the previous Headmaster and Block Elementary Education Officer, which placed respondent above the petitioner, ignored both the date of birth and the actual time of joining. Hence, the seniority list was not sustainable in the eyes of law and was liable to be quashed. The Notification dated 2nd of March 2010, was relied upon by the court which governed the procedures for promotion to the post of Head Master. Clause 3 provides that selection to the post of Head Masters in such Middle Schools shall be made strictly on the basis of seniority-cum-efficiency. It was held by the court that the appointment of respondent as In-Charge Headmaster was in violation of the principle of seniority-cum-efficiency as laid down in the Government Notification dated 02.03.2010. The judgment in Ashok Kumar Roy vs. State of Assam was also relied upon where it was held that the prime consideration for choosing an incumbent to be in-charge Headmaster/ Headmistress of a school is the school seniority.

It was further held by the court that the transfer order dated 11.11.2024, transferring the petitioner to another school during the pendency of the writ petition, was mala fide. The case of Somesh Tiwari vs. Union of India, was relied upon by the court wherein the Supreme Court had held that a transfer order when passed and without giving an opportunity of being heard to the concerned officer is malice in law. And when an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.

Therefore, the order dated 22.10.2024 appointing respondent as In-Charge Headmaster was set aside. Further the seniority list was quashed by the court and it was directed to the respondents to allow the petitioner to act as In-Charge Headmaster with all financial powers. Further the transfer order dated 11.11.2024 was also quashed by the court.

With the aforesaid observations, the writ petition was allowed.

Case Name: Nozrul Islam vs. The State of Assam and Ors.

Case No.: WP(C)/5620/2024

Counsel for the Petitioner: N Sarma, G U Ahmed, R Islam

Counsel for the Respondents: P N Sarma, J Abedin & S C Biswas