WP(C) 5415/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) Heard Mr. A.C. Sarma, learned counsel for the petitioner as well as Mr. D. Das, learned counsel, representing the respondent No. 4. I have also heard Mr. M.K. Mishra, learned Standing Counsel, Education Department, who has a lso produced the relevant records. 2. While the petitioner is a Subject Teacher, the respondent No. 4 is an As sistant Teacher in the Graduate Scale of pay. Both of them are serving in the sc hool called Dhalpur Higher Secondary School. The petitioner is aggrieved by Anne xure-3 order dated 28.11.2008, by which the respondent No. 4 has been allowed to hold the charge of Principal of the school with effect from 1.12.2008 as per th e provisions of FR 49 (C) in addition to her normal duty alongwith financial pow er. 3. While it is the case of the petitioner that she is by far senior to the respondent No. 4, it is the case of the respondent No. 4 that because of transf er of the petitioner to the present school on her own request, her earlier perio d of service in the earlier school cannot be counted and consequently she become s senior to the petitioner. At this juncture, the relevant dates of appointment and transfer may be mentioned. While the petitioner was appointed as Subject Tea cher in the school called Azad Higher Secondary School on 6.12.1979, the respond ent No. 4 was appointed as Assistant Teacher in the Graduate scale of pay in the year 1982 (15.5.1982) in another school. From the materials on record, it appea rs that the petitioner was transferred to the present school in 1986 and so also the respondent No. 4 in the year 1998. According to the respondents, the petiti oner will get seniority in the present school from the date of her joining on tr ansfer in the year 1986 as her transfer was on her own request. On the other han d, transfer of the respondent No. 4 to the present school has been projected to be in public interest entitling her to count seniority from the original date of appointment i.e. 15.5.1982. 4. The official respondents instead of depicting the correct picture leadin g to the case, filed an affidavit on 18.3.2009 containing misleading statement. In the affidavit filed by the Director of Secondary Education, Assam, while supp orting the case of the respondent No. 4 it has been contended that the petitione r was transferred in 1986 on her own request, but the respondent No. 4 was trans ferred in 1998 in the interest of public service. Normally the Court believes su ch statement made by the authority like the Director of Secondary Education, but on perusal of the record, what is found is that the respondent No. 4 was in fac t, transferred on her own request without the benefit of TA/DA. Thus the stateme nt in the affidavit is incorrect and false. 5. When the respondents made it known that there is no record pertaining to transfer of the petitioner in 1986, this Court by order dated 10.6.2009 directe d the respondents to clarify the position. 6. In terms of the said order dated 10.6.2009, the Deputy Director of Secon dary Education Shri Khagendra Nath Das has filed an additional affidavit clarify ing the position. In the additional affidavit filed, it has been stated that the averments made in the earlier affidavit was due to over sight and was by way of mistake. As per the said affidavit, the records have revealed that the responde nt No. 4 had made a request for transfer to the present school. Acting on such r ecommendation, the transfer of the respondent No. 4 was effected in 1998. In the transfer order it is clearly indicated that she would not be entitled to any TA /DA. 7. As regards the transfer of the petitioner in 1986, it is the stand of th e respondents that no record is available and/or traceable. If that be so, it is not understood as to how the respondents could have stated in the earlier affid avit that the petitioner was transferred on her own request. The affidavit has f urther reflected that the earlier affidavit was filed without consulting the rec ords. Such approach on the part of the official respondents cannot be appreciate d and is viewed seriously. 8. I have verified the records. Regarding the transfer of the respondent No . 4 to the present school, the records have revealed that the respondent No. 4 h ad made an application on 23.7.1998 to the authority for her transfer to the pre sent school. Acceding to the said request, the authority passed the order dated 24.7.1998 transferring the respondent No. 4 to the present school indicating in the order that she would not be entitled to any TA/DA. Although, in the order, i t was stated to be in public interest, but the same was only in the interest of the respondent No. 4 as has been found from the record. 9. As regards the transfer of the petitioner to the present school in 1986, Sri Khagendra Nath Das, the Deputy Director of Secondary Education, Assam, by h is letter dated 16.5.2009 addressed to the learned Standing Counsel, Education D epartment has indicated that no records relating to transfer of the petitioner i n 1986 is traceable. 10. As regards the impugned order dated 28.11.2008 (Annexure-3), by which th e respondent No. 4 has been allowed to hold the charge of the Principal of the s chool, the records have revealed that the Inspector of Schools, North Lakhimpur District Circle by his letter dated 26.11.2008 while enclosing seniority list in respect of the teachers of the school also indicated about the transfer of the petitioner to the present school in 1986 and that of the respondent No. 4 in 199 8. In the seniority list, the petitioner’s name has been shown at serial No. 1, and that of the respondent No. 4 at serial No. 2. 11. Thus, from the seniority list, there is no dispute that the petitioner i s senior to the respondent No. 4. Even otherwise also taking into account the re spective date of appointment as 6.12.1979 and 15.5.1982 in the cadre of Subject Teacher and Assistant Teacher in Graduate scale, the petitioner is undoubtedly s enior to the respondent No. 4. The records have revealed that the respondent No. 4 by her application dated 11.11.2008 made a request to the authority to allow her to function as I/C Principal of the school. Her application was recommended by an MLA vide endorsement dated 12.11.2008. All these aspects have been mention ed in the additional affidavit filed by the Deputy Director of Secondary Educati on. Unfortunately, the respondents projected the transfer of the petitioner in t he present school to be one on her own request, while projecting the case of the respondent No. 4 to be one in public interest. But it is revealed from the reco rds that the respondent No. 4 was transferred without any TA/DA and her transfer was on her own request. 12. As regards the transfer of the petitioner in 1986, in absence of any rec ord, no opinion can be expressed. Even assuming that she was transferred on her own request in absence of any specific or due towards loss of seniority, she can not be deprived of her earlier seniority. Same is the case of the respondent No. 4. She was allowed to draw graduate scale of pay from 1986 and the respondent N o. 4 from 1998. 13. There is another aspect of the matter. The petitioner having been appoin ted in 1979 and the respondent No. 4 in 1982, the petitioner is definitely senio r to the respondent No. 4. As stated above, her transfer in 1986 and the transfe r of respondent No. 4 in 1998 respectively cannot obliterate their earlier servi ce disentitling them to count seniority from the date of original appointment. I t is only in the Assam Secondary Education (Provincialisation) Service Rules, 20 03, a provision has been made that upon a transfer of an incumbent, he/she will count seniority from the date of joining in the new school. In the earlier Rule i.e. Assam Secondary Education (Provincialisation) Service Rules, 1982, there is no such provision. It was a composite cadre of teachers in the graduate scale o f pay and the seniority was to be determined from the initial date of appointmen t and/or continuous appointment. Further, Rules of 2003 cannot be operated retro spectively so as to curtail the seniority of the petitioner and so also the resp ondent No. 4. In other words both the incumbents will count their seniority from 1979 and 1982 respectively. 14. Viewed from all the angles, there is no doubt to come to the conclusion that it is the petitioner, who is senior to the respondent No. 4 and will be ent itled to act as the Principal of the school. 15. For all the aforesaid reason, I have no hesitation to set aside and quas h the order dated 28.11.2008 (Annexure-3), which I accordingly do. The responden ts are directed to issue order towards allowing the petitioner to act as the Pri ncipal of the School. 16. Writ petition is allowed, leaving the parties to bear their own costs an d with a note of caution to the official respondents in the Education Department to be careful in future in filing the affidavits.