WP(C) 518/2010 BEFORE THE HON’BLE MR JUSTICE HRISHIKESH ROY Heard Mr. AK Goswami, learned senior counsel for the petitioner. Also heard Mr. AM Buzarbarua, learned counsel for respondent No. 5. The Education Department is represented by Mr. S. Das, learned standing counsel. 2.1 The petitioner challenges the order dated 18.1.2010 (Annexure-6) whereby the respondent No. 5 Md. Wahedur Rahman was permitted to draw his monthly salar y as Head Teacher from 934 No. G.C. Primary School (hereinafter referred to as t he original school, where the writ petitioner was functioning as the Head Teache r w.e.f 9.1.09, following transfer of the then Head Teacher (respondent No.5) fr om the said school. 2.2 In January, 2009 the respondent No. 5 was serving as the Head teacher an d the writ petitioner was serving as the seniormost Assistant Teacher of the ori ginal school. Following allegations of mismanagement of the mid-day meal rice, t he respondent No. 5 made a representation on 9.1.09 addressed to the Deputy Insp ector of Schools, South Salmara requesting for relieving him from the responsibi lity of Head Teacher of the original school and for his appointment as an Assist ant Teacher in any other school. 2.3 Acting on the said representation, the Deputy Inspector of Schools, Hats ingimari passed an order on 9.1.09 recording therein that the respondent No.5 ha s resigned from the post of Head Teacher of the G.C. Primary School and he is no w being posted as an Assistant Teacher at Aratgaon LP School (herein after refer red to as the second school. 2.4. Thereafter the respondent No. 5 while serving as an Assistant Teacher in the second School applied for posting to Osmania Moktab LP School hereinafter r eferred to as the 3rd school and by order dated 27.2.09, the Deputy Inspector of Schools posted the respondent No. 5 to the 3rd School . 3. Since the transfer of respondent No. 5 to the 3rd School was ordered dur ing a ban period, the impugned order was passed on 18.1.2010 by the Deputy Inspe ctor of Schools, Hatsingimari, whereby the transfer order dated 27.2.09 was with drawn and the respondent No. 5 was permitted to draw his monthly salary as Head Teacher from the original school i.e. 934 No. G.C. Primary School. 4.1 It is contended on behalf of the writ petitioner that after the responde nt No. 5 voluntarily resigned the post of Head Teacher on 9.1.09, the writ petit ioner was appointed as Head Teacher of the 934 No. G.C. Primary School and as su ch the respondent No. 5 cannot be permitted to draw his salary as Head Teacher f rom the original school after his voluntary resignation. 4.2 It is further contended that if the transfer order dated 27.2.09 is requ ired to be interfered with, the respondent No. 5 has to go back to the second Sc hool where he was transferred on 9.1.09 and he cannot be permitted to go back to the original school, where he served as the Head Teacher. 5.1 On behalf of the respondent No. 5, Mr. Buzarbarua submits that there is no dispute that respondent No,. 5 was serving as a regular Head Teacher of G.C. Primary School and but for his resignation under coercive circumstances, the wri t petitioner as an Assistant Teacher, could never aspire to be posted as Head Te acher of the original school. 5.2 It is further contended that a conspiracy was hatched by a group of peop le to oust the respondent No. 5 from the post of Head Teacher of the original Sc hool and only because of the vitiated atmosphere, the respondent No. 5 was force d to apply for being posted as an Assistant Teacher of another school. 5.3 It is pointed out by Mr. Buzarbarua on behalf of respondent No. 5 that t he administrative enquiry conducted into the allegation of misappropriation of m id-day meal rice have revealed that no such misappropriation had taken place and the final report in the police case registered against the respondent No., 5 is also relied upon to show that the respondent No. 5 is not involved in any misap propriation activities. 6.1 On behalf of the Education Department, the learned standing counsel subm its that the transfer of the respondent No. 5 on 9.1.09 to the second school and on 27.2.09 to the 3rd school were made during the ban period and the Deputy Ins pector of Schools accordingly could not have passed the said transfer orders. 6.2 It is also pointed out that the Director of Elementary Education is the appointing authority for Head Teachers of LP Schools and a lower authority like the Inspector of Schools could not have passed any order which has the effect of acceptance of a request for resignation from the post of a Head Teacher and for posting of Head Teacher in the lower post of Assistant Teacher in an LP School. 7. I have considered the rival contentions and perused the case papers. I f ind that when the impugned order dated 18.1.2010 was passed, the respondent No. 5 was not serving as the Head Teacher in the original school but was serving as an Assistant Teacher of the 3rd school. Therefore, when the transfer order dated 27.2.09 is cancelled, the respondent No. 5 can at best be permitted to serve in the 2nd school where he was earlier transferred on 9.1.09. Therefore, I am of t he considered opinion that an order could not have been passed permitting the re spondent No. 5 to draw his monthly salary as Head Teacher from the original scho ol from where he was posted out on 9.1.09. It must also be noted that at the tim e of the impugned order dated 18.1.2010, it was the writ petitioner (not respond ent No. 5) who was serving as Head Teacher of the original school and therefore without appropriate order on the functioning of the writ petitioner, the respond ent No. 5 could not have been permitted to draw the salary as Head Teacher from the original school. 8. From the final report in the police case lodged against the respondent N o. 5 as well as the averments in the counter affidavit filed by the Director of Elementary Education, Assam, it is apparent that the respondent No. 5 was not in volved with any misappropriation and the rice stock allotted to the original sch ool was found to be in order. In such circumstances, there is some force in the submissions of he that the respondent No. 5 was compelled to apply for demittin g the office of Head Teacher of the original school on 9.1.09 and it was not a v oluntary act of the respondent No. 5. 9. It must also be borne in mind that resignation from the post of Head Tea cher can be accepted only by the appointing authority, who in this case is the D irector of Elementary Education and a subordinate authority such as the Deputy I nspector of Schools, was not competent to take a final decision on the applicati on of respondent No.5, whereby he prayed for relieving him from the responsibili ty of Head Teacher of the original school and requested for posting as an Assist ant Teacher of another LP School. An appropriate order on the representation of the respondent No. 5 made on 9.1.09 in my view could have been passed only by th e Director as the Appointing Authority and not by any of other subordinate offic ers of the Education Department. 10. In the above circumstances, direction is issued to the Director of Eleme ntary Education to consider as to whether the request made by the respondent No. 5 on 9.1.09 to relieve him from the responsibility of Head Teacher of the origi nal school should be acted upon or he (respondent No. 5) should be permitted to continue as the Head Teacher of the original school. The Director is also requir ed to decide as to whether the writ petitioner should be allowed to continue to act as the Head Teacher of the original school where the respondent No. 5 was se rving as the regular Head Teacher until 9.1.09. The Director of Elementary Educa tion may take an appropriate decision on these aspects after affording opportuni ty to the respondent No. 5 as well as the writ petitioner. Until a decision is t aken by the Director, the writ petitioner in the interregnum, shall be permitted to act as the Head Teacher of the original school. The necessary orders may be passed by the Director of Elementary Education expeditiously and preferably on o r before 3.3.2011. 11. The writ petition is disposed of with the above direction without any or der on cost.