Ranjan Gogoi, J.@mdashCommon question of law and facts having arisen in both these writ petitions, the same are being taken up together for consideration and are being disposed of by this common judgment.
2. The facts necessary to unravel the controversy that has arisen between the parties in the present proceeding may be conveniently set out as hereunder. For clarity, it may be noticed that one D.P. Tiwari in the Petitioner in C.R. No. 6241/96 and the Respondent No. 4 in C.R. No. 516/97 whereas one P.K. Deb Adhikari is the Petitioner in C.R. No. 561/97 and the Respondent No. 5 in C.R. No. 6241/96.
3. The bone of contention between the parties to the present proceeding is regarding inter-se seniority in the cadre of Assistant Teacher in a particular High School of the State of Assam. The question of seniority of the incumbents admittedly is dealt with by the provisions of Assam Secondary Education (Provincialised) Service Rules, 1982 particularly Rule 13 thereof. Aggrieved by the determination of seniority made by the Director of Secondary Education, Assam, the Respondent No. 4 in C.R. No. 516/97, D.P. Tiwari instituted a writ proceeding before this Court which was registered as C.R. No. 2567/93. This Court by judgment and order dated 7.12.95, on the grounds and reasons mentioned, expressed its declination to enter into the question raised by the writ Petitioner in the said proceeding and instead thought it appropriate to send the matter back to the Director of Secondary Education, Assam for a de-novo consideration of the question of inter-se seniority between the present parties. Pursuant to the said order passed by this Court in C.R. No. 2567/93, the Director of Secondary Education by order dated 7.6.96 determined the seniority of Sri D.P. Tiwari over Sri P.K. Deb Adhikary. Aggrieved, Sri P.K. Deb Adhikary filed an appeal before the learned Commissioner and Secretary to the Government of Assam, Education Department and the said authority by the impugned order dated 5.12.96 reversed the findings arrived at by the Director of Secondary Education, Assam and came to the conclusion that it is Sri Deb Adhikary who is senior to Sri Tiwari. The correctness of the aforesaid order passed by the learned Commissioner and Secretary to the Govt., of Assam, Education Department is the subject matter of challenge in C.R. No. 6241/96 instituted by the aforesaid D.P. Tiwari. In the parallel proceeding instituted by Sri Adhikary the correctness of the order passed by the Director of Secondary Education dated 7.6.96 is under challenge. To resolve the dispute that has arisen in both the writ petitions, an examination of the correctness of the contentions raised in C.R. No. 6241/96 by Sri Tiwari would be sufficient.
4. Mr. A.K. Goswami, learned Counsel appearing for the writ Petitioner in C.R. No. 6241/96 has advanced a two fold submission in support of the challenge made in the writ petition. According to Mr. Goswami, under the provisions of the 1982 Rules no appeal before the Commissioner & Secretary to the Govt. of Assam, Education Department was competent in law and, therefore the impugned order dated 5.12.96 passed by the said authority is wholly without jurisdiction requiring appropriate interference of this Court. Alternately, it has been argued that even assuming such an appeal to be competent in law, the merits the order passed by the Commissioner & Secy. to the Govt. of Assam, Education Department suffer from errors which are ex-facie apparent from the records and the said order stands Vitiated by consideration of irrelevant factors in determining the inter-se seniority between the parties to the present proceeding.
5. Elaborating his argument Mr. Goswami, learned Counsel for the Petitioner has submitted that under Rule 13 of 1982 Rules, the Commissioner & Secretary to the Govt., of Assam is competent to adjudicate the question of inter-se seniority of incumbents only on a reference made by the Director of Secondary Education. In the instant case, no such dispute relating to seniority having been referred to the learned Commissioner & Secy. by the Director, the exercise of powers by the Commissioner is wholly unauthorised in law. Mr. Goswami has further argued that a right of appeal cannot be inferred or implied from the provisions of any statute. Such a right must be explicitly conferred. The 1982 Rules being silent on this aspect of the matter, according to the learned Counsel, the Commissioner could not have entertained the instant appeal against the order passed by the Director dated 7.6.96.
6. In so far the merits of the order dated 5.12.96 passed by the learned Commissioner is concerned, Mr. Goswami submits that the Respondent No. 5 though appointed by order dated 31.1.74, his initial appointment was under Half-a-Million Job Programme which is a Centrally sponsored scheme. The persons appointed under the aforesaid centrally sponsored scheme are not a part of the cadre and what is relevant under Rule 13 for determination of seniority is continuous Service in the cadre. According to the learned Counsel, the Respondent No. 5 can be deemed to have at best come into the cadre w.e.f. the year 1985 when the entitlement of promotion'' to higher posts was conferred to incumbents appointed under the aforesaid Centrally sponsored scheme. According to the learned Counsel, the finding, recorded by the learned Commissioner that the Respondent No. 5 was regularised against a sanctioned graduate posts in the graduate scale of pay w.e.f. 1.1.75 is an erroneous finding on the face of the record inasmuch as, the school in which the Respondent No. 5 was working was Provincialised only in the year 1980. On the aforesaid basis, the learned Counsel submits that the seniority of the Respondent No. 5 can be reckoned only from the date on which he was brought into the cadre which is sometime in the year 1985. The writ Petitioner having admittedly been brought in the cadre on 23.2.80 i.e. the date of provincialisation of Jawahar Hindi High School, the Petitioner is admittedly senior to the Respondent No. 5.
7. Mr. A.S. Choudhury, learned senior counsel appearing on behalf of the Respondent No. 5 countering to arguments advanced by Mr. Goswami has submitted that the appeal filed by the Respondent No. 5 before the Commissioner against the order dated 7.6.96 passed by the Director of Secondary Education was competent under the provisions of Rule 16 of the Assam Services (Discipline & Appeal) Rules, 1964. Mr. Choudhury by taking me to the provisions of the aforesaid Rule 16 has argued that the Rules of 1964 make provision for disciplinary matters and also for appeals arising out of the orders passed in the disciplinary proceedings. According to the learned Counsel, the Rules of 1964 also make provision for filing appeals against the orders relating to conditions of Service and which are not connected with disciplinary matters. I have perused the provisions of the Rules of 1964 including Rule 16 of the aforesaid Rules. It is my considered view that on a plain reading of Rule 16 of the Rules 1964 it is evident that the said rules contemplate appeals against orders not related to disciplinary matters but which are otherwise connected to conditions of Service of an affected incumbent. The provisions of Rule 16(2) of the Rules of 1964 makes the aforesaid position abundantly clear. Consequently I am of the considered view that the present appeal filed by the Respondent No. 5 before the Commissioner is authorised by the provisions of Rule 16 and the said appeal is competent in law.
8. Having adjudged the aforesaid issue, the next question that has to be considered in the light of the submissions made by Sri Choudhury, learned Counsel appearing for the Respondent No. 5, is as regards the correctness of the order dated 5.12.96 passed by the Commissioner and Secretary to the Govt., of Assam, Education Department reversing the order dated 7.6.96 passed by the Director of Secondary Education fixing the inter-se seniority of the writ Petitioner and the Respondent No. 5.
9. According to Mr. Choudhury, in view of the clear finding recorded in the impugned order dated 7.12.96 to the effect that the Respondent No. 5 was regularised against a sanctioned graduate post in the graduate scale of pay w.e.f. 1.1.75 whereas the writ Petitioner at best can be said to have been regularised in a similar manner w.e.f. 23.2.80, the determination of seniority as made by the impugned order does not warrant any interference, particularly in exercise of powers under Article 226 of the Constitution.
10. The finding recorded by the learned Commissioner in the impugned order dated 7.12.96 as regards the date of regularisation of the writ Petitioner as well as the Respondent No. 5 has already been noted. The date of regularisation of the Respondent No. 5 against a sanctioned graduate post in the graduate scale of pay is admittedly earlier than that of the writ Petitioner. The question is whether the said date can have any relevance in determination of seniority in accordance with the provisions of Rule 13. The argument advanced by Mr. Goswami is short and precise. The date from which seniority has to be reckoned in case of the Respondent No. 5 is the date of encadrement which according to the learned Counsel, is someone in the year 1985. The period of Service rendered outside the cadre, it is argued, is not relevant. Judged from this prospective, according to the learned Counsel, the writ Petitioner is admittedly senior to the Respondent No. 5 by Virtue of the later date of encadrement of the Respondent No. 5. To fortify his submission Mr. Goswami has relied on a Division Bench judgment of this Court dated 20.9.2001 passed in Review Petition No. 19/99 arising out of W.A. No. 584/97. I have perused the judgment and order dated 20.9.2001 passed by this Court in Review Petition No. 19/99 reliance on which has been placed by Mr. Goswami. The aforesaid judgment hardly resolve the controversy. It leaves the question unanswered inasmuch as in the aforesaid judgment this Court has held that the date of grant of graduate scale of pay is not relevant but what is relevant is the date of encadrement. The question, therefore, would be what would be the date of encadrement of the writ Petitioner as well as the Respondent No. 5 for the purpose of determination of their inter-se seniority. This Court has already noticed that the services of the Respondent No. 5 initially recruited against a centrally sponsored scheme was regularised against a sanctioned graduate post in the graduate scale of pay by order dated 8.1.75 w.e.f. 1.1.75. The writ Petitioner was admittedly regularised w.e.f. 23.2.80. The consequential question that would arise, is what would be the effect of regularisation of the Respondent No. 5 made by the order dated 8.1.75. In the considered view of the Court when the Service of the Respondent No. 5 had been regularised against a sanctioned post carrying graduate scale of pay by a lawful order passed by the State authority, the only logical effect of the said order is that the Respondent No. 5 becomes a part of the cadre from 1.1.75. The objection of Mr. Goswami, learned Counsel for the Petitioner that the school in which the Petitioner was working was a venture school and was Provincialised only in the year 1980 and, therefore, the regularisation order was ineffective can hardly be accepted. There is no material on record to how whether the school in question was a venture school or a Government aided school. In the instant case, the Service of the Petitioner in a particular school on the strength of a valid order of regularisation would not obliterate the effect of such regularisation, at least not for the purpose of computation of seniority. Consequently, under Rule 13 of the 1982 Rules, the period of continuous Service in so far as the Respondent No. 5 is concerned, has to be counted from 1.1.75. As already recorded hereinabove there is hardly any dispute that such continuous Service in a sanctioned graduate post in so far the writ Petitioner is concerned, has to be counted from 20.2.83.
11. In view of the findings recorded hereinabove, C.R. No. 6241/96 has to be dismissed and the order dated 5.12.96 passed by the Commissioner & Secy. to the Govt. of Assam, Education Department has to be upheld. C.R. No. 516/97 has to be allowed and the order dated 7.6.96 passed by the Director of Secondary Education has to be set aside and quashed.
12. Both the writ petitions stand answered accordingly.
