Retrospective Regularisation Shall Not Confer Seniority: Gauhati HC

Background Facts

The appellant and the respondent were teachers at Barghuli Nehru Higher Secondary School. The appellant was appointed as a Graduate Teacher in 1996. The respondent had joined a different school in 1994 on an ad hoc basis, however, he obtained his Graduate Degree in 1997. Therefore, he subsequently joined Barghuli Nehru Higher Secondary School in 1998.

The service of respondent was regularized from the date he joined Barghuli school i.e. 1998. However, much later his service was again regularized from his earlier appointment i.e. 1994.

Due to this regularization, there was a dispute over seniority between the two teachers. The respondent claimed seniority based on his regularization from 1994. He claimed seniority for becoming the In-charge Principal of the school. The respondent filed a writ petition. The Single Judge found the respondent to be senior. Aggrieved by this decision, the appellant filed the writ appeal before the Gauhati High Court.

It was argued by the appellant that the respondent had joined other school in 1994 on ad hoc basis, but he became a Graduate on September 27, 1997. Whereas the appellant was substantively appointed as a Graduate Teacher in the school on May 6, 1996. It was further argued that 2022 regularization of respondent from 1994 ad hoc appointment cannot be used to determine seniority. It could only help the respondent for pension purposes.

He argued that seniority under Rule 14 of the Assam Secondary Education (Provincialised Schools) Rules, 2018, seniority can only be counted from the date when the teacher had actually possessed a Graduate Degree and he must be receiving the Graduate Scale of Pay. However, the respondent became a Graduate on September 27, 1997, therefore his seniority as a Graduate Teacher can only be counted from that date.

On the other hand, it was argued by the respondent, that as per 2018 Rules, the teaching staff in provincialised schools consists of various cadres. The post of Vice Principal has been placed above the post of Post Graduate Teacher. The respondent had been holding the post of Vice Principal of the school for about five years, therefore, he had a better claim to be the In-charge Principal compared to the appellant.

It was further submitted that Rule 12 of the Rules provides that a Post Graduate Teacher needs 15 years of service to be eligible for appointment as Principal, but a Vice Principal needs only 5 years of service. It was also argued that the respondent had been receiving the Graduate Scale of Pay right from his initial appointment on April 29, 1994. He contended that seniority must be counted from the date of receiving the Graduate Scale of Pay. Therefore, the respondent's seniority should be considered from 1994.

Findings of the Court

It was noted by the Division Bench that Rule 14(1) of the Assam Secondary Education (Provincialised Schools) Rules, 2018 provides that the seniority of a Graduate Teacher shall be determined from the date of receiving the Graduate Scale of Pay. However, it requires that the teacher should be a Graduate Teacher i.e. the minimum qualification of a Graduate from a recognized university.

It was further observed that the respondent had been receiving the Graduate Scale of Pay since 1994, but he was not a Graduate Teacher at that time. He acquired his Graduate Degree in 1997. Therefore, it was held that the seniority of the respondent as a Graduate Teacher could only be counted from 1997, when he fulfilled both conditions of possessing the Graduate Degree and receiving the Graduate Scale of Pay.

It was further observed by the Court that the appellant had been substantively appointed as an Assistant Graduate Teacher in the school in 1996. However, the respondent was not a Graduate at that time. Hence, the appellant was held to be senior to the respondent as a Graduate Teacher.

Further the 2022 regularization order was examined by the court, which regularized the respondent's service from his ad hoc appointment in 1994. Relying upon the Supreme Court's decision in Ganga Vishan Gujarati Vs. State of Rajasthan, it was held that retrospective regularization cannot confer seniority from a date when the employee was not even borne in the cadre.

Hence it was concluded by the Division Bench that the Single Judge had erred in holding the respondent to be senior to the appellant. It was held that the appellant is the more senior of the two teachers in the cadre of Graduate and Post Graduate Teachers.

The case of Abdus Salam Vs. State of Assam was relied upon wherein it was held that the senior-most teacher, who is qualified for promotion as Headmaster, should hold the post of In-charge Headmaster.

Further in Sujit Paul Vs. State of Assam & Ors., it was held that an ad hoc period of service cannot be counted towards seniority. It was clarified that retrospective regularization does not confer retrospective seniority, because regularization for the purpose of seniority operates prospectively i.e. from the order of the regularization.

It was held by the Division Bench that the post of In-charge Principal should be filled from amongst the senior-most eligible teacher who can also be considered for regular promotion. Therefore, the appellant being the senior-most, was made the In-charge Principal.

With the aforesaid observations, the appeal filed by the appellant teacher was allowed and the single judge order was set aside by the Division Bench.

Case Name : Hemen Chandra Das Vs. Ramesh Chandra Khakhlari & Ors.

Case No. : WA/170/2024

Counsel for the Appellant : P. Mahanta, Advocate

Counsel for the Respondents : R.P. Sharma, Sr. Adv; A. Deka, Adv; R. Baruah, Adv; B. Bhuyan, SC, BTC