WP(C) 7898/2004 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY The order dated 14/9/2004 of the District Elementary Education O fficer, Nagaon, promoting the respondent No. 5 as the Headmaster of the Bamuni M .E. School, Nagaon (hereafter referred to as the School) is sought to be annulle d by invoking the extra ordinary jurisdiction of this Court. 2. I have heard Mr. K.K. Mahanta, learned Counsel for the petitione r and Mr. Goswami, learned Standing Counsel, Education Department. The responden t No. 5 though served with the notice of the proceeding has not entered appearan ce. 3. The synopsized version of the petitioner’s case is that after jo ining the Jurmur Milan Bidyapith M.E. School as the Assistant Teacher on 4/6/197 8, he having graduated in Science was upgraded as graduate Science teacher and w as eventually appointed as the Headmaster of the said institution in the year 19 96. He was thereafter subsequently transferred to the Bamuni M.E. School where h e joined on 16/2/2001. While claiming that since then he is serving in the said School and is senior to respondent No. 5 the petitioner has asserted that in the year 2000, he was selected for promotion to the post of Headmaster by the conce rned District Level Selection Committee and in the panel prepared on the basis o f seniority cum efficiency, he was at Sl. No. 137. The respondent No. 5, judged by the above touchstone was placed at Sl. No. 169. According to the petitioner, the respondent No. 5 who had been eyeing the office of the Headmaster of the Sch ool contrived to remove him therefrom. Coincidentally, the petitioner as he was suffering from some ailments warranting medical attention, had submitted an appl ication for leave before the District Elementary Education Officer, Nagaon, on 1 7/10/2003. His illness was so severe that he could not attend the School on 16/1 0/2003. He thereafter came to learn that in the meantime, he has been transferre d to Krishna Kanta Handique M.E. School by order dated 14/10/2003 passed by the District Elementary Education Officer, Nagaon. He has alleged that the move had been initiated at the instance of the respondent No. 5 on political consideratio ns. 3. As his representation against the transfer yielded no result, he approached this Court with WP(C) 9258/2003. By interim order passed on 11/11/20 03, his transfer was stayed and eventually by order dated 31/8/2004, the said im pugned order was quashed. The petitioner claims that in terms of the above order , he has been continuing in his post in the School as the senior most graduate t eacher as on date. The petitioner has averred that another select list has since been prepared by the territorial District Level Selection Committee for promoti on to the post of Headmaster on the basis of seniority cum efficiency in the yea r 2004 wherein his inter se position with the respondent No. 5 therein is 83:160 . He has, therefore, maintained that in terms of the said select list as well, h e has a preferential right for the promotion to the post of Headmaster over that of the respondent No. 5. In this view of the matter, he, on 13/9/2004 submitted a representation before the District Elementary Education Officer, Nagaon, to e ffect such a promotion in the School in place of respondent No. 5 who had been h olding the office on in-charge basis. As inspite thereof, the impugned order the reof has been passed by the State respondents, he is before this Court for redre ss. 4. The Director of Elementary Education, Assam, in his counter has stated in substance that following the petitioner’s transfer from the School to Krishna Kanta Handique M.E. School, by order dated 14/10/2003 one Smt. Rekha Dev i joined the School on 16/10/2003. The petitioner, however, though released did not comply with the order of transfer and approached this Court in WP(C) 9258/20 03. According to the answering respondent, the interim order could not be implem ented as in the meantime he had been released and in his place Smt. Rekha Devi h ad joined. The petitioner was also granted earned leave on medical ground on 14/ 12/2003 for a period of 45 days w.e.f. 16/10/2003. The petitioners claim that he rejoined the School on 2/12/2003 after the leave has been denied by the respond ent. The deponent has stated that after this Court disposed of WP(C) 9258/2003 b y its order dated 30/8/2004 quashing the impugned order of transfer, Smt. Rekha Devi preferred an appeal being WA 332/2004 in which by an interim order dated 10 /9/2004, this Court ordered that she as well as the petitioner be allowed to con tinue in their service at the respective places where they had been working. The respondent authorities thereby were also directed to make endeavours to make pa yment of their salary in accordance with law. Subsequent thereto the District El ementary Education Officer, Nagaon, arranged to release the pay of the petitione r from Krishna Kanta Handique M.E. School by attaching him to his office. The ar rangement was modified on 29/11/2005 whereby the petitioner’s salary was decided to be paid from the School and that of Rekha Devi from Krishna Kanta Handique M .E. School. Eventually the said authority by his order dated 16/5/2006 withdrew the post of Science teacher of Krishna Kanta Handique M.E. School and attached i t to the Bamuni M.E. School to facilitate payment of the salary to both of them from the same School i.e. Bamuni M.E. School. Though the answering respondent ad mitted that the petitioner and the respondent No. 5 were selected, for the post of Headmaster and were placed at Sl. No. 83 and 163 respectively, the latter was promoted being the senior most teacher in the School, the petitioner in the mea ntime having been transferred to the Krishna Kanta Handique M.E. School. 5. As observed hereinabove, the respondent No. 5 has not contested the proceedings and, therefore, the pleaded facts in the writ petition remain un controverted by him. The petitioner in his affidavit in reply while generally re iterating the statements made in the writ petition has asserted that the order o f transfer notwithstanding in view of the interim order and eventual annulment t hereof by this Court in WP(C) 9258/2003, he continued in the School without any break and, therefore, the promotion of the respondent No. 5 overlooking his supe rior claim is illegal, arbitrary and discriminatory. 6. Mr. Mahanta has argued that as at all relevant times, the petiti oner was the senior most Assistant Teacher of the School, he having occupied a h igher position in the select list over the respondent No. 5, the suitability of the candidates having been adjudged on the criteria of seniority cum efficiency, the impugned order is per se illegal and is liable to be interfered with. As th e very basis namely the petitioner’s transfer from the School for illegally depr iving him from the benefit of promotion stands effaced by the judgment and order dated 30/8/2004 passed in WP(C) 9258/2003, the action of the State respondents in promoting the respondent No. 5 besides being unsustainable thereafter smacks of bias rendering the same nonest in law. The petitioner having been wrongly den ied his promotion it is a fit case where an appropriate writ or direction ought to be issued to endow him therewith by ousting the respondent No. 5 from the off ice of the Headmaster of Bamuni M.E. School. 7. The learned Standing Counsel, Education Department, submits that as the select list on the basis of which the petitioner claims promotion has lo ng lost its force, no relief as prayed for can be extended to him at this distan t point of time. 8. The facts as emerge from the pleadings pertaining to the petitio ner’s transfer, the challenge laid by him against the same, the interim order pa ssed and the eventual disposal of the writ petition being WP(C) 9258/2003 by qua shing the order of transfer are of matters of records. Though the Director of El ementary Education, Assam, in his affidavit endeavoured to emphasise that pursua nt to the order of transfer, the petitioner had been released from the School on 16/10/2003, he has admitted as well that he had been granted leave by the Distr ict Elementary Education Officer, Nagaon, from 16/10/2003 to 29/11/2003. The arr angement for payment of salary of the petitioner as well as Smt. Rekha Devi as A ssistant Teachers of the same School, i.e. Bamuni M.E. School in terms of the or der dated 30/8/2004 passed by this court in WP(C) 9258/2003 and the one dated 10 /9/2004 passed in WA 332/2004 by withdrawing the post of Science Teacher from Kr ishna Kanta Handique M.E. School and attaching it with Bamuni School is admitted in the State counter. That the petitioner on 13/9/2004 had submitted a represen tation before the District Elementary Education Officer, Nagaon, contending that he is serving in the School and that on the basis of the current select list pr epared for the promotion to the post of Headmaster, his case ought to be conside red therefor is also not in dispute. Noticeably the date of the representation i s almost two weeks after the repudiation of the order of transfer by this Court. That the petitioner at the relevant time occupied a higher position in the sele ct list drawn up by the District Elementary Selection Board over the Respondent No. 5 for promotion to the post of Headmaster is also admitted. The date of the impugned order of promotion is incidentally the day after which the petitioner h ad submitted the aforementioned representation. The impugned order amongst other s mentions that the promotion is purely on temporary basis liable to be terminat ed at any time without assigning any notice or reason. 9. On a conjoint consideration of the above facts and circumstances , the plea endorsing the impugned order citing petitioner’s absence from the Sch ool to be the justification therefor is per se unconvincing. His transfer to Kri shna Kanta Handique M.E. School by order dated 14/10/2003 having been abrogated by this Court, there was no scope for the respondent authorities to ignore him f or promotion to the post of Headmaster in the School, he having been adjudged to be superior to the respondent No. 5 on the measure of the prescribed norm of se niority cum efficiency meant for the office. In that view of the matter, the imp ugned order in the attending facts and circumstances cannot be sustained in law as well as on facts. It is, therefore, set aside. 10. The petitioner in the above factual backdrop appears to have bee n illegally deprived of his right to be promoted to the post of Headmaster of th e School. The State respondents have not disqualified him to be wanting in eligi bility, suitability or desirability to be elevated to the said post. The petitio ner has not contributed in any manner to the state of affairs and instead has be en diligently pursuing his legal remedies before this Court. The respondents wer e understandably aware of the orders passed by this court and the implications t hereof. The petitioner thus could not have been overlooked in the matter of prom otion to favour the respondent No. 5. The contention that as with the lapse of t ime, the select list has exhausted its term and he is not entitled to the relief prayed for, does not commend for acceptance. The petitioner cannot be penalized for the default of the State respondents. The respondents also cannot be permit ted to take advantage of their own wrong. 11. On a totality of the above considerations, I am of the unhesitan t opinion that the petitioner is entitled to be promoted to the post of Headmast er of the School by dislodging the respondent No. 5. This direction at this stag e logically would visit the respondent No. 5 with prejudicial consequences. Howe ver, the overwhelming materials on record do not justify the continuance of the said respondent in the post. The petitioner’s promotion to the post of Headmaste r of the School would be effective from the date on or from which the respondent No. 5 had been installed in the said office however notionally and only for the purpose of seniority in service and other consequential benefits based thereon. The petition stands allowed in the above terms. No costs.