Smti. Padumi Barman v. The State of Assam and 3 Ors

ORDER

01-03-2023 Heard Ms. A. Devi, learned counsel for the petitioner and Mr. R. Mazumdar, learned Standing counsel, Department of School Education, Assam for the respondent Nos. 1 & 2.

¶2The petitioner served as an Assistant Teacher in Maligaon High School from 13.08.1982 since the time of its venture stage. Since provincialisation of her service w.e.f. 25.04.1985, the petitioner received her Graduate Scale of Pay. Said High School was later converted to a co-educational institution.

¶3In the seniority list prepared by the Headmistress and Secretary of said High School on

29.07.2010, the name of the petitioner was placed at Sl. No. 1 and that of Smt. Garima Sarma was placed at Sl. No. 3. Said Garima Sarma, Classical Teacher of Sanskrit was transferred from Desh Bhakta Tarun Ram Phukan School, Silchar and she joined said Maligaon High School on 29.08.1986.

¶4After retirement of the erstwhile Headmistress of said Maligaon High School, the Inspector of Schools, Kamrup District Circle, Panbazar, Guwahati by order dated 31.07.2010 allowed said Garima Sarma to be the Headmistress in-charge of said High School, disregarding the seniority of the petitioner.

¶5Being aggrieved with the same, the petitioner preferred a writ petition being WP(C) No. 5711/2011, challenging the order dated 31.07.2010 of the Inspector of Schools, Kamrup District Circle, Panbazar, Guwahati whereby said Garima Sarma was allowed to be the Headmistress in-charge of said Maligaon High School.

¶6During pendency of said WP(C) No. 5711/2011 preferred by the petitioner, said Garima Sarma retired from her service on 30.11.2013 on attaining the age of superannuation at 60 years. Thereafter, the petitioner was allowed to be the Headmistress in-charge of said Maligaon High School, who too retired from service on 28.02.2015 on attaining the age of superannuation at 60 years.

¶7On 11.02.2011 & 12.02.2011, a selection for the post of regular Page No.# 3/5 Headmaster/Headmistress/Superintendent of provincialised High Schools/High Madrassas of the State was held and during the selection for the post of Headmaster pertaining to Maligaon High School, the name of Garima Sarma figured at Sl. No. 1 and that of the petitioner at Sl. No. 2.

¶8During pendency of said WP(C) No. 5711/2011, on being selected and recommended by the School Level Selection Committee that was approved by the State Level Selection Board, said Garima Sarma was allowed to hold the post of regular Headmistress of said Maligaon High School.

¶9It is stated that after the retirement of said Garima Sarma on attaining the age of superannuation at 60 years, the petitioner was allowed to serve as the Headmistress in-charge of said High School on that basis and that since she was senior to Garima Sarma, it is stated that the respondent authorities in the Secondary Education illegally allowed said Garima Sarma to hold the post of regular Headmistress of said High School. Therefore, the petitioner has prayed for direction to the respondent authorities in the Secondary Education Department to provide her regular Scale of Pay as Headmistress of said Maligaon High School since the date of appointment of said Garima Sarma as a regular Headmistress of said High school.

¶10The second prayer of the petitioner is that since she was allowed to hold the charge of Headmistress of said Maligaon High School after the retirement of said Garima Sarma, the respondent authorities in the Secondary Education Department should provide the petitioner the Scale of Pay of Headmaster/Headmistress since October, 2013 till her retirement in February, 2015.

¶11Pursuant to the orders passed in said WP(C) No. 5711/2011, the Directorate of Secondary Education (DSE), Assam while determining the seniority between the petitioner and said Garima Sarma, respondent No. 5 therein in service, said Garima Sarma was found to be senior than the petitioner. However, said decision of the DSE, Assam was neither objected nor challenged by the petitioner and in the meanwhile, said Garima Sarma retired from her service.

¶12The Court by order dated 06.05.2014 dismissed said WP(C) No. 5711/2011 that was preferred by the petitioner as infructuous since the prayer of the petitioner challenging the appointment of said Garima Sarma as Headmistress in-charge of said Maligaon High School had no force, after her appointment/promotion to the post of Headmistress in-charge in the said High School.

¶13It is an admitted fact that in the merit list prepared by the concerned authorities in the year 2011 for the post of regular Headmaster/Headmistress in said Maligaon High School, the name of said Garima Sarma figured at Sl. No. 1 and that of the petitioner at Sl. No. 2. Accordingly, said Garima Page No.# 4/5 Sarma was allowed to hold the post of Headmistress of said Maligaon High School.

¶14It is well settled that once a selected candidate on merit was appointed to the post, after such appointment, the select list becomes exhausted and in that view of the matter, the petitioner cannot claim that as she was selected in the year, 2011 for the post of Headmistress in said Maligaon High School, who was at the second position in the merit list at that point of time, therefore, the petitioner should be appointed as the Headmistress of the said High School after the retirement of said Garima Sarma is not sustainable in law. In fact, after the retirement of the selected candidate namely, Garima Sarma in October, 2013, the post of Headmistress in said Maligaon High School needs to be filled up again by a regular process of selection and not from the select list that was prepared in the year 2011.

¶15Though in this petition, the petitioner annexed a copy of the select list showing the position of selected candidates in respect of Natun Fatasil Town High School, pursuant to which, one Purabi Das Kalita was appointed as a Headmistress in that School on 11.11.2014, but from the affidavit filed by the respondent authorities in the Secondary Education Department, it is seen that at the time of appointment of Headmaster/Headmistress of said Natun Fatasil Town High School, the 1st and 2nd selected candidates have already retired from their services and the 3rd selected candidate from the panel of the select list was appointed as a Headmistress of said High School and the case of appointment of Headmistress of said Natun Fatasil Town High School is not similar to the case of appointment of regular Headmaster from the said select list of 2011 pertaining to Maligaon High School.

¶16With regard to the claim of the petitioner for her Scale of Pay of Headmistress during the time she performed duties as the Headmistress in-charge in said Maligaon High School, it is not the case of the petitioner that she was allowed to hold the charge of Headmistress of said School but not under the Fundamental Rule 49 (C).

¶17Fundamental Rule 49 (C) provides that no additional pay shall be admissible to the Government employee who is directed to hold current charge of the routine duties of a higher post irrespective of the duration of the additional charge.

¶18It is well settled in law that the authority concerned may allow a Government employee to hold a higher or equivalent post under F.R. 49 (C) in addition to the normal duties of the said Government employee for which no such additional amount/financial benefit equivalent to the additional charge is Page No.# 5/5 required to be paid to the concerned incumbent.

¶19As noted above, since the petitioner was allowed to be the Headmistress in-charge of said Maligaon High School, as such, she is not entitled to any such additional amount for performing her duties of Headmistress on in-charge basis in said Maligaon High School.

¶20Moreover, the claim of the petitioner for her regular promotion to the post of regular Headmistress in said Maligaon High School has been dismissed on 02.06.2017 for non-prosecution.

¶21For the reasons above, this writ petition being devoid of merit, stands dismissed.

JUDGE

Comparing Assistant

PageoNo.#o1/5 GAHC010112192016 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3120/2016o SMTI.oPADUMIoBARMANo W/OoATULoCH.oBARMAN,oR/OoNILACHALPUR,oMALIGAON,oDIST-oKAMRUPo METRO,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo3oORSo REP.oBYoTHEoCOMMISSIONERoANDoSECY.oTOoTHEoGOVT.oOFoASSAM,o EDUCATIONoSECO,oDISPUR,oGHY-6 2:THEoDIRECTORoOFoSECONDARYoEDUCATION oASSAM oKAHILIPARA oGHY-19 3:THEoCOMMISSIONERoandoSECY.oTOoTHEoGOVT.oOFoASSAM oFINANCEoDEPTT. oDISPUR oGHY-6 4:THEoACCONTANToGENERALoOFoASSAM oAandE oMAIDAMGAON oBELTOLA oGHY-2o AdvocateoforotheoPetitionerooooo:oMRS.AoDEVIo AdvocateoforotheoRespondento:oSC,oSECONDARYoEDUCATIONoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/5 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK