Chandrababu Sarma vs State Of Assam And 3 Ors

Heard Mr. A Deka, learned counsel for the applicant respondent no. 4 Chandrababu Sarma. Also heard Mr. U K Nair, learned counsel for the writ

petitioner Ajit Kumar Nath.

The writ petitioner Ajit Kumar Nath was appointed as an Assistant Teacher in the Padum Pukhuri High School on 24.10.1998 whereas the

applicant respondent no. 7 Chandrababu Sarma was appointed as an Assistant Teacher initially in AK Memorial Girls High School on 23.12.1993.

Subsequently, he was transferred to the Padum Pukhuri High School on 02.09.2000. If under the law, the applicant respondent no. 4 Chandrababu

Sarma is entitled to the seniority of his service in the AK Memorial Girls High School i.e. his appointment from 23.12.1993, admittedly he would be

senior to the writ petitioner Ajit Kumar Nath. On being prima facie satisfied that the applicant respondent no. 4 Chandrababu Sarma would not be

entitled to his earlier service period in AK Memorial Girls High School for the purpose of his overall seniority, the interim order dated 22.02.2021 was

passed in WP(C) 1039/2021.

The applicant respondent no. 4 has instituted this interlocutory application for a modification of the interim order dated 22.02.2020 by seeking to

raise a prima facie case that the provisions of Section 24(3) of the Assam Secondary Educational (Provincialised) Service Rules, 2003 (in shot Rules

of 2003) providing that the seniority of a teacher who joins a school by transfer from another school or otherwise would be determined from the date

of his joining in the school to which he was transferred. The said provision was brought in by the Assam Secondary Educational (Provincialised)

Service (Amendment) Rules, 2012 which came into effect from 10.07.2012.

Mr. A Deka, learned counsel for the applicant respondent no. 4 has raised a contention that the said provision would be inapplicable in such case

where the transfer was made prior to 10.07.2012. Accordingly, as the applicant respondent no. 4 was transferred to Padum Pukhuri High Schol on

02.09.2000 i.e. prior 10.07.2012, therefore, the provision of Rule 24(3) of Rules of 2003 would be inapplicable. On the other hand, Mr. Deka seeks to

make a submission that the applicant respondent no.4 would be entitled to his seniority in the AK Memorial Girls High School for the purpose of

counting his seniority even in the Padum Pukhuri High School.

An acceptance of such submission of Mr. Deka would again depend as to whether the provisions of the Assam Secondary Educational

(Provincialised) Service (Amendment) Rules, 2012 has the retrospective effect or the provisions thereof are prospective in nature. If it would be

prospective in nature, the other relevant question would be what was the law that was prevailing prior to the amendment being brought in.

Mr. A Deka, learned counsel for the applicant respondent no. 4 refers to a three bench judgment of this Court in Jamal Uddin vs. State of Assam

& ors. reported in 2012 (1) GLT (FB) 1 wherein in paragraph 73 it had been provided that if the seniority position of a teacher had been finally settled

there is no requirement to reopen the same and the provisions otherwise laid down in Jamal Uddin case would not be applicable. The provisions

otherwise in the Jamal Uddin judgment is that a person who was transferred to a school on his own request will not get the benefit of the seniority of

the earlier school.

Mr. Deka seeks to make a submission that as the seniority of the applicant respondent no. 4 had already been finalized in the school prior to the

judgment in the Jamal Uddin case, therefore, the same cannot be reopened and his seniority in the school would have to be accepted.

We requires the applicant respondent no. 4 to produce any given documents or materials which may indicate that the seniority of the applicant

respondent no. 4 in Padum Pukhuri High School had been finally settled by providing him the seniority of his earlier service in AK Memorial Girls High

School. No such material is available on record. Taking into consideration the various submission made by the applicant respondent no. 4, we do not

find any prima facie case being made out for a modification/vacation/cancellation of the interim order dated 22.02.2021.

However, Mr. A Deka, learned counsel for the applicant respondent no. 4 has stated that there are further materials to show that the applicant

respondent no. 4 would be entitled to his earlier period of service in AK Memorial Girls School for the purpose of his seniority even in Padum Pukhuri

High School. If such materials are available it would be a matter of passing final judgment in this writ petition and possibility of there being materials

available cannot be a reason for the Court to arrive at any conclusion as regards the prima facie case being made out.

In view of above, we deem it appropriate to hear the entire writ petition at the earliest and for the purpose the writ petition be listed in the week

commencing from 31.08.2021.

On the occasion of next listing it is expected the parties would be ready with all the relevant materials they may rely upon for a proper adjudication

of this case.