WA 254/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE U.B.SAHA The aforementioned appeal witnesses a challenge to the order dated 24.8.2011 pas sed in Misc. Case No. 2423/2011 registered on an application filed by the respon dent No.5 herein in WP(C) No. 3764/2011 instituted by the present appellant. The learned counsel for the parties in course of the hearing of the appeal having a lso argued on the issues involved in the writ proceeding, this adjudication woul d address the rival contentions therein as well. Consequently, the writ petition as well as the present appeal stands disposed by the present decision. 2. We have heard Mr N Dutta, Senior Advocate assisted by Mr J Roy, Advocate for the appellant/ writ petitioner; Mr A Deka, learned Standing Counsel , Education Department, Govt. of Assam for the official respondents and Mr SK Me dhi, Advocate for the respondent No.5. This respondent had been oriented identic ally in the writ proceeding. 3. A brief account of the pleaded facts would be essential. The app ellant/ writ petitioner has been serving as a Subject Teacher in the Sonapur Hig her Secondary School (for short, hereinafter referred to as ’the School’) in the district of Kamrup with effect from 1.12.1978. The respondent No.5 was transfer red from the Hamidabad Higher Secondary School, Dhubri to the Sonapur Higher Sec ondary School on his request vide order dated 13.10.98 passed by the Director of Secondary Education, Assam. Admittedly, this order stipulated that the responde nt No.5 would not claim seniority over the existing staff of the Sonapur Higher Secondary School and that no T.A. and D.A. would also be admissible for his tran sition thereto. According to the appellant/ writ petitioner, she at the relevant point of time i.e. 30.7.2011 was the seniormost Subject Teacher of the School a nd, therefore, nursed a legitimate expectation of being allowed to hold the char ge of the office of the Principal thereof on the impending superannuation of its incumbent Sri Abdul Hassan. It was at that stage that by the order dated 21.7.2 011 of the Inspector of Schools, Kamrup District Circle, Guwahati, the responden t No.5 was allowed to hold the charge of the Principal of the School due to the suspension of the aforenamed Abdul Hassan. Faced with this unexpected setback in her career, the appellant/ writ petitioner approached this Court on 25.7.2011 b y means of WP(C) 3764/2011 seeking its intervention in exercise of its powers un der Article 226 of the Constitution of India. The writ petition was listed for ’ Motion’ hearing on 29.7.2011 but could not be taken up. It is the case of the ap pellant/ writ petitioner that on 30.7.2011 Sri Abdul Hassan was reinstated and h e resultantly took over charge of the office of the Principal of the School from the respondent No.5 and eventually retired on 31.7.2011 on reaching the age of superannuation. 4. The appellant/ writ petitioner thereafter filed an interim appli cation registered as M.C. No. 2215/2011 in the pending writ petition in which by order dated 1.8.2011 this Court restrained the official respondents from appoin ting the respondent No.5 as the in-charge Principal of the School. Liberty was g ranted to the Inspector of Schools, Kamrup District Circle, Guwahati to take ove r charge of the said office. In deference to this order, the Director of Seconda ry Education, Assam by his order dated 11.8.2011 directed the Inspector of Schoo ls, Kamrup District Circle, Guwahati to hold the charge of the said office super ceding any earlier arrangement whereunder the respondent No.5 had been permitted to hold the same. 5. The respondent No.5 on his turn filed another application regist ered as M.C. No. 2423/2011 seeking modification/ alteration/ cancellation of the order dated 1.8.2011 contending principally that prior to the passing of the in terim order dated 1.8.2011 he had already taken over charge of the office of the principal of the School. An affidavit-in-opposition was filed by the appellant/ writ petitioner resisting the prayer of the respondent No.5, whereafter, by the order impugned in the instant appeal the interim restraint was vacated. 6. The respondent No.5 in his affidavit-in-opposition in the writ p roceeding, however, admitted to have been transferred to the Sonapur Higher Seco ndary School by the order dated 13.10.98 of the Director of Secondary Education, Assam on his own request. In his additional affidavit he, however, has denounce d the order dated 13.10.98 to be mechanical to the extent of imposing the condit ion of loss of seniority and denial of T.A and D.A, he not having conceded to th e same. According to him, the inter-se seniority of the parties has to be on the basis of their initial dates of joining in their respective schools. 7. Mr Dutta has argued that it being apparent on the face of the or der dated 13.10.98 that the respondent No.5’s transfer to the Sonapur Higher Sec ondary School had been on his own request and subject to the condition inter ali a that he would not claim seniority over the existing staff of the said institut ion, the order dated 21.7.2011 of the Inspector of Schools, Kamrup District Circ le, Guwahati allowing him to hold the charge of the Principal thereof is per se arbitrary, unauthorized and unsustainable in law. As the respondent No.5 has adm itted to have taken transfer to the Sonapur Higher Secondary School on his own r equest and had accepted the order dated 13.10.98 to that effect embodying the st ipulations as contained therein as a whole, he is estopped from questioning the validity thereof, he urged. According to the learned senior counsel, the order d ated 13.10.98 having been passed by the Director of Secondary Education, Assam, the Inspector of Schools, Kamrup District Circle, Guwahati being an officer subo rdinate in rank, the order dated 21.7.2011 in any view of the matter is to be ad judged non-est in law and on facts. The learned senior counsel pleaded that thou gh the issue with regard to the loss of seniority of a teacher in a Secondary Sc hool of the State upon transfer on his request in the context of the Assam Secon dary Education (Provincialisation) Service Rules, 2003 (for short, hereinafter r eferred to as ’the Rules’) is presently subjudice before a Full Bench of this Co urt, even on the basis of the restricted view in this regard as discernible in t he decision rendered in Jiten Thakuria -vs- State of Assam & Ors., (2009) 5 GLR 540, in the facts of the present case, the respondent No.5’s claim of superior s eniority over the appellant/ writ petitioner is wholly misconceived. 8. Mr Deka, learned Standing Counsel, Education Department, Govt. o f Assam refrained from making any comment on the controversy and produced the re levant records pertaining to the transfer of the respondent No.5 for the perusal of the Court. 9. Mr Medhi, on the other hand, has contended that as meanwhile the order dated 21.7.2011 of the Inspector of Schools, Kamrup District Circle, Guwa hati has been rendered non-est by the one dated 30.7.2011 of the same authority, the writ petition has become infructuous and so is the instant appeal. Accordin g to him, the interim order dated 1.8.2011 had been rightly vacated as the same was obtained by suppressing the material fact that by then the respondent No.5 h ad already assumed the charge of the office of the Principal of the School. He c ontended that as the issue with regard to loss of seniority of a teacher on inte r-school transfer on his/ her request is presently under scrutiny by a Full Benc h of this Court, no interference in the instant appeal or the writ proceeding is warranted. Mr Medhi urged that in any view of the matter, the reliefs prayed fo r in the writ petition do not survive as on date for further consideration. 10. We have extended our due consideration to the pleadings availabl e and the arguments advanced. That the respondent No.5 was transferred from the Hamidabad Higher Secondary School to the Sonapur Higher Secondary School on his own request is a matter of record. The order dated 13.10.98 passed by the Direct or of Secondary Education, Assam clearly mentions that his said transfer was on his own request and that he would not claim seniority over the existing staff of the Sonapur Higher Secondary School. Thereby T.A and D.A. was also declared to be inadmissible for the purpose of transfer. There is nothing on record to sugge st that the conditions on which the respondent No.5 had been transferred as abov e had been withdrawn or modified to his benefit. This order per se was passed b y an authority higher in rank than the Inspector of Schools, Kamrup District Cir cle, Guwahati who by the order dated 21.7.2011 had permitted the respondent No.5 to hold the charge of the office of the Principal of the School due to the susp ension of the earlier incumbent Sri Abdul Hassan. It is not the case of the resp ondent No.5 that he had at any point of time assailed the conditions subject to which his request for transfer was allowed vide order dated 13.10.98. His plea a t this belated stage that he did not submit to the said stipulations in his appl ication requesting transfer lacks persuasion. This respondent was transferred fr om the Hamidabad Higher Secondary School, Dhubri to the Sonapur Higher Secondary School on the condition inter alia that he would not claim seniority over the e xisting staff of the Sonapur Higher Secondary School including the appellant/ wr it petitioner. As noticed hereinabove, the appellant/ writ petitioner had been c ontinuing as a Subject Teacher in the School with effect from 1.12.1978. Neither the respondent No.5 nor the official respondents has pleaded her ineligibility under the Rules to hold the post of Principal of the Sonapur Higher Secondary Sc hool. 11. This Court in Jiten Thakuria (supra) while dwelling upon the iss ue of seniority of such inter-school transfer prior to the enforcement of the Ru les held thus:- 13. There is another most vital aspect of the matter, Even assuming that as per the Rules of 1982, seniority was to be determined school wise, can be it said t hat in all cases of request transfer, the incumbent would forego his past servic e in the earlier school. The answer will be in the negative. There is nothing wr ong in making a request for transfer by a school teacher. There may be very many grounds for such request, but unless one undertakes to forego his past service and/or his such request is accepted with the condition of forfeiture of the past service with the specific stipulation that, he would be entitled to count his s eniority in the new school from the date of joining only, later on, he cannot be deprived of his past service towards seniority, lest it is argued that had been made known to him, he would not have accepted such conditional transfer. . 12. The above extract would demonstrate that this Court in the backg round of the Assam Secondary Education (Provincialisation) Service Rules, 1982 h ad addressed itself to the aspect of seniority on request transfer of an incumbe nt. The text of the above excerpt evidently deals with a fact situation before t he arrival of the 2003 Rules. It is obvious from this quote that while a request for transfer of a school teacher can be validly made, if the same is accepted w ith the condition of forfeiture of past service with a specific stipulation to t hat effect, he would stand deprived of his past service towards seniority. It is logically unacceptable that the respondent No.5 was unaware of the conditions u nder which his request for transfer had been allowed by the order dated 13.10.98 . His turn around at this distant point of time cannot be countenanced. In the a bove view of the matter, the respondent No.5’s plea of being senior over the app ellant/ writ petitioner in the School does not commend for acceptance. 13. Though going by the intervening developments as would be testifi ed by the communications dated 30.7.2011 and 1.8.2011 involving the Inspector of Schools, Kamrup District Circle, Guwahati and the respondent No.5, it would tra nspire that he (respondent No.5) meanwhile had taken over charge of the office o f the Principal of the Sonapur Higher Secondary School, he was detruded therefro m vide order dated 11.8.2011 of the Director of Secondary Education, Assam passe d in compliance of the order dated 1.8.2011 of this Court rendered in M.C. No. 2 215/2011. The official records do not disclose any reason to prefer the responde nt No.5 over the appellant/ writ petitioner for the post of Principal, though on in-charge basis. In view of the clear and unambiguous stipulations contained in the order dated 13.10.98 of the Director of Secondary Education, Assam, the res pondent No.5 could not have been accorded seniority over the appellant/ writ pet itioner in the Sonapur Higher Secondary School. In absence of any material on re cord to disqualify the appellant/ writ petitioner to be the in-charge Principal of the School, the orders to the contrary having regard to the framework of the writ petition as well as the reliefs sought for cannot receive judicial imprimat ur. The plea that the writ petition has become infructuous in the face of the ab ove determination also is unacceptable. The plea raised in Clause-(c) of the pra yer portion of the writ petition has to be construed vis-à-vis the issue of in-c harge Principalship of the Sonapur Higher Secondary School. 14. In the result, the appeal as well as the writ petition succeed. The order dated 24.8.2011 passed in M.C. No. 2423/2011 is interfered with. The o rder dated 21.7.2011 of the Inspector of Schools, Kamrup District Circle, Guwaha ti and the other communications/ orders consequential thereto permitting the res pondent No.5 to be the in-charge Principal of the Sonapur Higher Secondary Scho ol are hereby quashed. The official respondents would take necessary consequenti al steps in accordance with law forthwith. No costs.