SREEDAM CHANDRA GHOSHversusTHE STATE OF ASSAM AND ORS.

A                      . SREEDAM CHANDRA GHOSH
                                         v.
                     THE STATE OF ASSAM AND ORS.

                              SEPTEMBER 9, 1996

B              [K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

                                                                                     ;
          Service Law :
                                                                                     •
          Secondary Education (Provi11cialised Se1vice) Rules, 1982:
c         Rules 9, JO( a)--Assista11t Graduate Teacher officiating as .Head
  Master-No order of appointment as such issued-Transfer of Head Master
  to that School from some other School-Challenged by the officiating i11cum-
  bent-High Cowt 11egativing the challenge-On appeal held : it was 011ly a
  stop-gap a1ra11gement by which the petitioner was officiating as Head Master
D till the regular i11cumbent assumed office as Head Mastel'-Hence he has 110
  right to the post after the regular incumbent has bee11 transfen-ed t~ the
  post-'-Asking the petitioner to hand over the charge to the new i11cumbent does
  not aniount to demotion or p1111ishment-Si11ce the petitioner stood in the way -
  of e11forceme11t of the transfer order passed by the competent authority, High
  Court has rightly given appropriate directions to the Director to enforce the
E orders and take suitable actio11 agai11st the ening officers-Assam Civil Service
  (Discipline a11d Appeal) Rules.

         CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    No. 16986 of 1996.                                       -
F        From the Judgment and Order dated 29.5.96 of the Assam High
    Court in W.A. No. 165 of 1996.

            N.N. Karmakar, S.C. Ghosh and Somnath Mukherjee for ,the
     Petitioner.
           j
G
           The following Order of the Court was delivered :

           This special leave petition has been filed against the judgment and
     order. of the Gauhati High Court made on May 29, 1996 in W.A. No. 165/96
     confirming the order of the learned single Judge. While the petitioner was
H    working as an Assistant Graduate Teacher in Kahilipara High Schoo~ a
                                         688
                        S.C. GHOSH v. STATE                            689

regular incumbent of the high school one Keshablal Kanjilal had retired A
from service on 11.1.1995. The petitioner being the senior-most Assistant
Graduate Teacher was asked to officiate in the post till a new incumbent
takes charge. The Inspector of Schools, Kamrup District circle, Gauhati by
his proceedings dated 18.1.1995 asked the petitioner to discharge the
additional duties as headmaster in addition to his duty as a school Assistant B
Graduate Teacher authorising to draw and disbursement of the salaries.
One Mukul Chandra Roy, a regular headmaster working in Pranab
Bidyapity High School at Lumding of Nagaon district has been transferred
by order date 15.2.1996 to the incumbent post in which the petitioner is
officiating. This transfer order came to be challenged by the petitioner in
the High Court contending that he was promoted as headmaster on regular      c
basis, therefore, Mukul Chandra Roy cannot be transferred in his place.
The learned single Judge and the Division Bench had held that there was
no order of appointment to the petitioner promoting him on regular basis
as headmaster; he was continuing as an officiating headmaster; the
petitioner, therefore, has no right to the post as headmaster and that the D
transfer order, therefore, was held to be implementable. Since the order
of transfer was not being complied with, the High Court had directed the
Director of Education to take disciplinary action against the persons
responsible for noncompliance thereof. Calling that order in question, this
special leave petition has been filed.
                                                                             E
       Shri N.N. Kumar, learned counsel for the petitioner l;las contended
that the Division Bench of the High Court was wrong in placing reliance
on Rule 9 of the Secondary Education (Provincialised Service) Rules, 1982.
It would apply only in a case where regular recruitment by promotion is to
be made. Rule lO(a) would be applicable to the petitioner. The post was F
upgraded by asking the petitioner to officiate and that, therefore, he is
entitled to continue in the post. We find no force in the contention. The
learned counsel has read out Rule lO(a) with all the conditions prescribed
therein. It is only a procedural part for consideration of tlie claims of the
eligible candidates for promotion to the post of headmaster. The list is to
be drawn by the competent authority, with a recommendation to the Public G
Service Commission or the Committee, as the case may be, was to consider
the respective claims. After receipt of such list, the claims are to be
considered by the Public Service Commission or the Committee, as the
case may be, within one month from the date of the receipt of the list and
then recommendation is to be made for appointment on regular basis. H
    690                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A Thereafter appointment requires to be made in accordance with the rules.

           Rulr' 9 prescribes the qualifications and the procedure for appoint-
    ment by promotion to the post of Headmaster out of the select list of
    Vice-Principal, Assistant Headmaster and Post-Graduate Teachers having
    15 years' continuous teaching experience in the service. Admittedly, there
B   is no order of appointment made to the petitioner. As having been seen
    from the record, it was only a stop gap arrangement made of the petitioner
    to offici11:te as headmaster till the regular incumbent assumes office as
    Headmaster. Therefore, he does not have any right to the post to hang on
    after the ~egular incumbent has been transferred to the post.
c           '
          It is_ then contended that the ousting of the petitioner from the post
    amounts to punishment. The procedure prescribed under the Assam Civil
    Service (Discipline and Appeal) Rules has not been applied; it amount fo
    demotion'. of the petitioner from the service of the headmaster to the post
D   of Assistant Graduate Teacher, therefore, the High Court has overlooked
    the statutory provision The learned counsel is wholly misconceived in his
    conception of the law. The Assam Civil Service (Discipline and Appeal)
    Rules apply only in a case where disciplinary action is sought to be taken
    against a .Government servant in accordance with the principles. In this
    case, since the petitioner was officiating and regular incumbent has to
E   assume the office and the petitioner has to handover the charge to the new
    regular incumbent, it is neither demotion nor a punishment.
                '
            '       '
          It is then contended that the impugned order is not a transfer order
  and it does not contain any direction to Mukul Chandra Roy to take charge
F or the petitioner has not been served with a notice that he should be
  demoted., This contention also is wholly misconceived. A reading of the
  order do indicate that Mukul Chandra Roy was posted in place of retired
  headmaster and the petitioner who was officiating as headmaster was
  directed t_o handover the charge. Therefore, it is a clear case of transfer cif
  Mukul Chandra Roy who is a regular headmaster. It is then contended that
G the transfer order does not create any right in favour of Mukul Chandra
  Roy and it cannot be enforced. He read out judgments of this Court as to
  exercise of the power of the High Court under Article 226. We fail to
  appreciate the contention of the learned counsel. This Court has amplified
  the exe~cise of power and the self-imposed limitation of the exercise of the
H power 4i the given circumstances. In this case, since the petitioner s~ood
                          S.C. GHOSH v. STATE                            691

in the way of enforcement of transfer order passed by the competent A
authority, the High Court has given appropriate direction to the Director
to enforce the orders and take suitable action against the erring officers.

      It is then contended that the transfer orders are to be enforced by
the Government as per the rules in vogue and the High Court cannot
interfere with these orders. We are unable to appreciate this contention        B
also. When the Government views non-compliance of the transfer Order
as a serious indiscipline on the part of the erring officer and when the
person complains of the non-compliance to the court, the court necessarily
has to give effect to the orders and give directions for enforcement thereof.
Under these circumstances, we do not find any merit in the petition.            C
       The petition is dismissed with no order as to costs.

G.N.                                                     Petition dismissed.