WP(C) 2036/2007 BEFORE HONBLE MR JUSTICE AMITAVA ROY The order dated 21.3.2007 passed by the Director of Secondary Education , Assam holding the Respondent No.4 to be senior to the petitioner in Ghilamara Higher Secondary School, District- Lakhimpur(hereafter referred to as the ’Scho ol’) is in challenge in the instant petition. 2. I have heard Mr A. Sarma, learned counsel for the petitioner, Mr M Dutta , learned Standing counsel, Education Department, Govt. of Assam and Mr A. Dutta , learned counsel for the Respondent No.4. 3. This is the second round of litigation by the petitioner. He was appoint ed as a Subject Teacher(Assamese) in Bordoloni Higher Secondary school on 26.1 2.79 and was thereafter on 23.2.1987, transferred to Ghilamara Higher Secondar y school by order of the same date issued by the Director of Secondary Education , Assam. He accordingly joined Ghilamara Higher Secondary school on 1.3.1987. O n the retirement of Sri Paramananda Gogoi ,the Principal of Ghilamara Higher Sec ondary School, by the order dated 29.12.2006, the Respondent No.4 was allowed t o hold the charge of the said office pending finalization of the inter se senio rity amongst five teachers including the petitioner. The petitioner being aggrieved by the said order, approached this Court with WP( C) No.290/2007 which was disposed of on 22.01.2007 with a direction t o the Director of Secondary Education, Assam to decide the question of seniority of the teachers of the school within a period of two months and thereafter allo w the seniormost teacher amongst the Assistant Teachers to hold the charge of the office of the Principal till a regular incumbent was inducted. The impugne d order was thereafter passed holding the respondent No.4 to be senior to the p etitioner principally, on the ground that he(petitioner) having been transferre d to Ghilamara Higher Secondary school on his request and in the interest of pub lic service, his seniority in the institution would be reckoned on and from 1.3. 1987 ie. the date of his joining. The seniority of the respondent No.4 who had a lready serving the school was counted with effect from 1.5.85, the date of rece ipt of the graduate scale of pay by him. 4. The Director of Secondary Education, Assam in his affidavit, has defended the order impugned by pleading that, in absence of any mention in t he order of the petitioner’s transfer to Ghilamara Higher Secondary school that it was in public interest and the disallowance of the TA and DA therefor demon strated that the same was not in the interest of public service and therefore, his seniority in the school was rightly computed with effect from 1.3.1987. As p er the criteria approved by the department in this regard as contained in the g uidelines dated 30.8.2001, the answering respondent has asserted that the respo ndent No.4 was rightly allowed to hold the charge of the office of the Principa l of the school in compliance of the order dated 22.1.2007 passed by this Court in WP( C) No.290/2007. 5. The respondent No.4 in substance, has reiterated the pleaded st and of the aforementioned official respondent . He has further asserted that the petitioner’s seniority was rightly determined on the basis of his date of join ing the school in terms of the Assam Secondary (Provincialised) Service Rules,20 03 (hereafter referred to as the ’Rules’). By an additional affidavit, the said respondent placed on record a certificate issued by the Principal, Bordoloni H igher Secondary school from where, the petitioner had been transferred, to the effect that he therefor had applied to the Director of Secondary Education, Assa m through proper channel. The copy of the said certificate (Annexure-B to the additional affidavit) is countersigned by the Inspector of Schools, Dhemaji Dis trict Circle, Dhemaji. 6. The petitioner in his rejoinder has dubbed the certificate tobe fraudulent contending that in response to his written query made to the Princip al, Bordoloni Higher Secondary school, the latter had disowned the said document to have been issued by him. The respondent No.4 in his additional pleading ha s sought to clarify that the matter having been brought to the notice of the Ins pector of Schools, Dhemaji District Circle, Dhemaji , he has admitted to have c ountersigned the document(Annexure-B to the additional affidavit of the Responde nt No.4) and that the signature and seal appearing thereon are genuine. The res pondent No.4 therefore on the basis of the said certificate has endeavoured to ward off the allegation of fraud levelled by the petitioner. The petitione r bringing forth the same allegation has filed an interim application being Mis c. Case No.833/2008 praying for initiation of a proceeding for perjury against t he respondent No.4. 7. Mr Sarna has argued that as the petitioner had been transferre d to Ghilamara Higher Secondary school in the interest of public service , his s eniority has to be counted on and from 26.12.1979, the date of his initial appo intment. Therefore, he being apparently senior to the respondent No.4, the find ing to the contrary is palpably illegal and unsustainable in law. There being no thing in the order of the petitioner’s transfer to indicate that the same had b een passed on his request , the inference to that effect is wholly baseless. As by the order of transfer dated 23.2.2007 the petitioner’s existing service benefits have been preserved , there is no room to assume that the same was on his request, he urged. Referring to F.R. 107 Mr Sarma argued that as the petiti oner has been granted the pay for the joining time referred to therein, it would by no means be construed that his transfer to Ghilamara Higher Secondary Scho ol was not in the interest of public service. He urged that as the department wa s obliged in law as required under S R 109 to register the necessary entry in t he petitioner’s Service Book indicating the nature of the transfer during his se rvice tenure , the same would conclusively demonstrate as to whether his transf er to Ghilamara Higher Secondary school had been in the interest of public serv ice or otherwise. Drawing the attention of this Court to the certificates iss ued by the Principal of Bordoloni Higher Secondary school, one produced by the respondent No.4 and the other by the petitioner, the learned counsel argued tha t it is apparent therefrom that the document ,Annexure-B to the additional affid avit of the respondent No.4 has been framed up to mislead this Court. He also referred to the letter dated 5.3.2008 of the Principal, Bordoloni Higher Second ary school, Bordoloni addressed to the Inspector of Schools, Dhemaji District Ci rcle, Dhemaji clarifying that the certificate issued by him on 25.1.2008 to th e respondent No.4 is not the same as the one produced by him in court. Mr Sarm a therefore, insisted that a proceeding be initiated against the respondent No. 4 for perjury. 8. The learned Standing counsel, Education Department has argued t hat inspite of his best efforts, the record containing the process leading to the transfer of the petitioner is reported to be untraceable. However, the rele vant entry in the Service Book does not indicate as to whether the same was in the interest of public service or on his own request. Underlining that the rel ated order of transfer does not disclose that the same was in the interest of p ublic service, the learned Standing counsel indicated that the stipulation of no t granting TA and DA was decisively significant inasmuch as in terms of SR 241 , the transfer allowance is not allowable if the transfer is at the request of the incumbent concerned. 9. The learned counsel for the respondent No.4 while reiterating h is pleaded stand argued that the petitioner having failed to discharge his bur den to establish that his transfer to Ghilamara Higher Secondary school had been in the interest of public service, the impugned order is unassailable in law. Referring to Rule 24(1)(v) of the Rules, he urged that the petitioner had been r ightly held to be junior to the respondent No.4. He further argued that a plain reading of the two certificates issued by the Principal, Bordoloni Higher Second ary school, would reveal that the contents thereof are overwhelmingly the same and that in the face of the unambiguous stand of the Inspector of Schools, Dhem aji District Circle, Dhemaji that he had countersigned the certificate produced by the respondent No.4 in Court, the plea of forgery is misconceived. 10. I have extended my thoughtful consideration to the pleadings of the parties and the arguments advanced. A bare reading of the order dated 2.3. 1987 does not disclose that the same had been occasioned in the interest of publ ic service. It does not mention either that it had been at the request of the p etitioner. It is however, apparent that thereby it was made clear that he would not be entitled to transfer TA or DA. The failure to produce the relevant offic ial records bearing the process of transfer is distressingly inexplicable. It i s inconceivable as to how a public record required to be maintained in the of ficial course of the administration of a department can become untraceable so m uch so that inspite of several opportunities granted to the State respondents, the same could not be produced in Court. The Commissioner and Secretary to the Govt. of Assam, Education Department , Dispur, Guwahati would cause an immediat e enquiry to be made as to the location of the records and fix the responsibili ty on the officer(s) concerned for their failure to produce the same in Court. The report of this enquiry should be submitted before this Court within a peri od of one month herefrom. The said authority if deemed necessary , depending on the revelations in the enquiry would take appropriate disciplinary action aga inst the erring officials and apprise this Court thereof. 11. The Service Book of the petitioner produced before this Court thoug h records his transfer from Bordoloni Higher Secondary school on 28.2.1987(A.N .), it does not divulge as to whether it was at his instance or in the intere st of public service. The Service Book therefore is not of much avail to resolve the controversy. FR 107 essentially deals with the pay of a government servant to which he would be entitled in various eventualities of his transfer vis a v is the joining time allowed to comply with the same. This in the opinion of the Court is not of any determinative relevance in favour of the petitioner in the facts and circumstances of the case. On the other hand, in terms of SR 241, a transfer on the request of the government servant from one station to another is not considered to be a transfer for public convenience unless the authorit y sanctioning the transfer for special reasons to be recorded , otherwise direc ts. The said provision stipulates that traveling allowance may not be drawn by a government servant unless the transfer is made for public convenience. Thoug h this provision of the Fundamental Rules may not in all cases per se an unmista kable proof of the fact that traveling allowance always is not allowable if the transfer is at the instance of the government servant concerned, the non sanc tion of TA/DA in the present case in conjunction with the absence of any menti on in the order of transfer that the same had been passed in the interest of pu blic service when considered along with certificate issued by the Principal, Bo rdoloni Higher Secondary School tilts the balance in favour of the respondent No.4. The contents of the two certificates deserve tobe extracted : Annexure-B to the Additional affidavit dated 27.2.2008 of the respondent No.4 : This is to certify that , Sri Madan Chutia Who was a Subject Teacher in the Su bject Assamese of Bordoloni Higher Secondary School of Dhemaji District since 01 -09-79 to 28-02-1987 had applied to the Director of Secondary Education, Assam, Guwahati though proper channel for transfer to Ghilamara Higher Secondary School of Lakhimpur District Vide Memo No.BHSS/AF-T/86/102 dtd 18.12.1986. Sd/- Illegible, 25.1.2008 Principal, Bordoloni Higher Secondary School Bordoloni Countersigned Sd/- Illegible, 30.1.08 Inspector of School Dhemaji District Circle, Dhemaji Annexure-C to the Affidvit-in-opposition of the writ petitioner dated 14.3.08. This is to certify that Sri Madan Chutia Who was a Subject Teacher in the Subject Assamese of Bordoloni Higher Secondary School of Dhemaji District Si nce 01-09-79 to 28-02-1987 had applied to the Director of Secondary Education, A ssam, Guwahati though proper channel for transfer to Ghilamara Higher Secondary School of Lakhimpur District. Sd/- Illegible, 25.1.08 Principal, Bordoloni Higher Secondary School Bordoloni Reading between the lines, the contents of the two certificates are exactly the same except that the first contains the words Vide Memo No.BHSS/AF-T/86/102 dtd 18.12.1986 in addition. The Principal, Bordoloni Higher Secondary school in his letter dated 5.3.2008 has admitted the issuance of the document, Annexure-C to the affidavit in opposition of the petitioner. The certificate dated 20.3.20 08 of the Inspector of Schools, Dhemaji District Circle, Dhemaji , Annexue-G1 of the affidavit in reply of the respondent No.4 dated 4.4.2008 confirms that the said authority had countersigned the document , Annexure-B to the addition al affidavit of the respondent No.4 on 30.1.2008 and that his signature and seal thereon are genuine. 12. Having regard to the marked similarity in the text of the two do cuments and the certificate of the Inspector of Schools, Dhemaji District Circl e, Dhemaji as referred to hereinabove, the imputation of forgery against the res pondent No.4 does not commend for acceptance. Both the documents however, in u nison proclaim that the petitioner had applied to the Director of Secondary Ed ucation, Assam, Guwahati for his transfer from Bordoloni Higher Secondary School , Dhemaji to Ghilamara Higher Secondary School, Lakhimpur. The petitioner notic eably has not challenged the correctness of this statement in the certificate. The protection of his pay and grade as referred to in the order of transfer does not ipso facto establish in the above factual premise that his transfer to Ghilamara Higher Secondary school was not on his request. On a preponderance of the facts available on record, this Court therefore is constrained to susta in the finding of the Director of Secondary Education, Assam that the petitione r had been transferred to Ghilamara Higher Secondary school on his request. The view taken is plausible on the materials on record and cannot be denounced as i llogical or absurd. 13. Rule 24(1)(v) of the Rules prescribes that a teacher, who has be en transferred on his/her own request to any other school would have his/her se niority in that school counted with effect from the date of his/her joining in t hat school. This provision of the Rules amongst others is for determining the se niority of the eligible teachers for promotion to the post of Headmaster/Superi ntendent /Assistant Headmaster /Assistant Superintendent in terms of Assam Seco ndary Education ( Provincialised) Service Rules. In this view of the matter, the impugned order dated 21.3.2007 does not warrant any interference of this Cour t, the inter se seniority between the petitioner and the respondent No.4 hav ing been ascertained on the basis of the date of receipt of the graduate scale of pay by the latter in Ghilamara Higher Secondary school and the date of joinin g of the former therein on 1.3.1987. 14. The writ petition as well as the Misc case are accordingly dismis sed. No costs.