- (1.) THE petitioner had originally challenged the order dated 21.2.2003 issued by the Regional Deputy Director, North Chhotanagpur Division, Hazaribagh (respondent NO.3), whereby the petitioner was directed to handover the charge of the office of the Headmaster to the respondent no. 5. A further prayer has been made for issuance of a writ of mandamus directing the respondents to correct the existing seniority list under which the petitioner has been shown as junior to the respondent no. 5. However, prayer is now confined only to the correctness of the existing seniority list since admittedly, the petitioner had handed over charge of the office of the Headmaster to the respondent no. 5 on 24.2.2003, in compliance with the direction contained in the impugned order dated 21.2.2003 of the respondent no. 3.
(2.) THE case of the petitioner IS that on his appointment to the post of teacher he joined his duty in R.S.K.B.C. High School, Nirsa, Dhanbad and was granted B.A. trained scale and from the date of his appointment, he has been continuously working in the North Chhotanagpur Division. The respondent no. 5 was appointed as Assistant Teacher in the year 1975 in the Patna Division and she was subsequently transferred to the North Chhotanagpur Division on 25.2.1981 and on her transfer, she had jointed the school at Mugma on 26.3.1981. While both petitioner and the respondent no. 5 were working as teachers in the same school, the then Headmaster of the School who was to retire on 31.1.2003. sought instruction from the District Education Officer as to whom should he handover charge of his office, but in absence of any guidance, the Headmaster handed over the charge of his office to the petitioner considering the petitioner to be the senior most teacher in the school and since thereafter, the petitioner was officiating as Headmaster of the School. Earlier, vide letter no. 22nd August. 2002 the District Education Officer, Dhanbad issued a letter to all Principals and Headmasters of the Government/Nationalized/Project/Minority High Schools calling for requisite information with regard to the date of taking over of the school and the date of transfer of the teachers from one division to another division. This information was sought for the purpose of finalizing the gradation list of the teachers. A draft seniority list was accordingly prepared by the Headmaster of the petitioner's school mentioning the fact therein that the respondent no. 5 was transferred from Patna Division to North Chhotanagpur Division and that, she had joined the school on 26.3.1981 and that the petitioner had joined this school in 1977. The contention of the petitioner is that in spite of the information conveyed to the District Education Officer that respondent no. 5 had joined the school on her transfer in March 1981, whereas the petitioner has been working in the school since the date of his appointment in the year 1977 and therefore, the petitioner is entitled to be ranked senior to the respondent no. 5 in the gradation list, the respondent no. 4 by the impugned order directed the petitioner to handover the charge of the office of Headmaster of the school to the respondent no. 5 declaring thereby that the respondent no. 5 was senior to the petitioner since such seniority appears in the earlier gradation list (Annexure -?). Grounds advanced by the petitioner claiming seniority over respondent no. 5 is that the respondent no. 5 was transferred on the basis of her own request from Patna Division to North Chhotanagpur Division. Rule 5 of the Bihar Nationalized School Service Condition Rules, 1983 stipulates that if any teacher has been transferred on his/her own request from one division to another division then earlier service rendered by him/her in the existing division will not be counted for the seniority in the other division, unless such transfer has been done pursuant to any policy decision of the Government. Furthermore, provision contained in the aforesaid Rules stipulates that the cadre of the existing teacher will be division wise and Controlling Officer will be the Regional Director of the said division. It has been further stipulated in the Rule 12 that transfer of the Assistant Teachers shall .be done within the same division itself and if any teacher is transferred beyond the division, then such teachers shall have to loose his/her seniority. Petitioner's further contention is that pursuant to the information supplied by the Headmaster of the School, -the gradation list which has been prepared vide Annexure -? in the year 1983, is incorrect inasmuch as, without considering the fact that the respondent no. 5 had joined the school on her transfer on her own request from the Patna Division to North Chhotanagpur Division in the year 1981, she is deemed to have lost her earlier seniority and she has to be ranked junior to the petitioner who is in service of the said school since the date of his appointment in 1977.
(3.) THOUGH , notice was served on the respondent no. 5, but she has not appeared, nor filed any counter -affidavit. However, the District Education Officer (respondent no. 4) has filed his counter -affidavit. Disputing the claim of the petitioner, the stand taken by the respondent no. 4 is that since respondent no. 5 was transferred from the Patna Division in 1981 therefore the service condition as stipulated in' Bihar Nationalized High School Service Condition and Regulation, 1983 will not be applicable to her since the service condition of 1983 cannot have retrospective effect.;