WP(C) 5044/2008 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA. . JUDGMENT AND ORDER (ORAL) These two writ petitions are connected with each other. The grievance ra ised in both the writ petitions is relating to the order dated 10.11.2008 (Annex ure-15 to the writ petition), by which the seniority of the petitioners vis-à-vi s the private respondents has been fixed. While in the writ petition being W.P. (C) No.5476/2008, it is the case of the petitioner that he is the senior most t eacher and thus, entitled to hold the charge of the post of Principal, in WP(C) No.5044/2008, the claim is that the petitioners are senior not only to the petit ioner in W.P. (C) No.5476/2008 but are also entitled to get seniority over the R espondent No.4, who has been allowed to hold the charge of the post of Principal , upon determination of his seniority above all the incumbents. 2. There is some controversy relating to the actual date of appointment of the petitioner in W.P. (C) No.5476/2008. In the writ petition, the petitioner ha s annexed the copy of the Annexure-1 order dated 11.4.1974, by which while sanct ioning an amount of Rs.900/- in favour of one Tarani M.E. School, with the appor tionment of the amount at Rs.150/- per month, the said amount was sanctioned for maintaining the Stipendiary Graduate Teacher. According to the petitioner, he was appointed as such pursuant to such sanction. Annexure-2 is an order dated 8. 6.1977, by which ad hoc recurring grant of Rs.355/- plus Rs.20/- per month as D .A. for the period of one year w.e.f. 1.3.1977 to 28.2.1978 was sanctioned in f avour of the said Tarani M.E. School. The amount was sanctioned for maintenance of Stipendiary Graduate Teacher. 3. By order Annexure-3 undated letter addressed to the petitioner by the Se cretary of the school Managing Committee, he was shown as Stipendiary Graduate T eacher in Tarani M.E. School w.e.f. 1.9.1973. As per the said letter, he was entitled to receive Rs.150/- per month as stipend. The post was said to be appr oved by the Inspector of Schools, Kamrup District Circle. The letter further re veals that the graduate scale was sanctioned w.e.f. 1.1.1975. This letter being an undated one, it is difficult to appreciate as to how the petitioner could be appointed w.e.f. 1.9.1973 and thereafter, shown to have been approved for grad uate scale of pay w.e.f. 1.1.1975. 4. By Annexure-4 order dated 2.9.1988, the petitioner was transferred from Tarani M.E. School to Rangia Higher Secondary School. His scale of pay was sho wn to be Rs.325/- to 650/-. In view of the above position, it is the claim of t he petitioner that since he had joined Tarani M.E. School w.e.f. 1.9.1973 and re ceived graduate scale of pay w.e.f. 1.1.1975, irrespective of his transfer from Tarani M.E. School to Rangia Higher Secondary School, he is entitled to count se niority in the graduate category from 1.1.1975. As against the aforesaid claim o f the petitioner in WP(C) No.5044/2008, the petitioners in the second writ peti tion i.e. WP(C) No.5044/2008 have contended that as per the Annexure-6 seniorit y list dated 27.2.2006 pertaining to Rangia Higher Secondary School, the petitio ner No.1 is the senior most teacher in the school while the petitioners No.2 and 3 being Subject Teacher and Demonstrator respectively are entitled to get senio rity over the Respondent No.4, who has been appointed as Principal-in-charge of the school. 5. Mr. M.R. Pathak, learned Standing Counsel, Education was requested to ob tain instructions as to the pay scale of the M.E. School teachers vis-à-vis High School teachers. He has since obtained required instructions and has produced t he typed sheet showing the pay scale of Assistant Teacher of M.E. School and Gra duate Teacher of High School. He has also produced the Gradation List of the sch ool pr epar ed on 27.2.2006 by the Principal of the school. For a ready refere nce, the prescribed pay scale of M.E. School teachers and High School Graduate T eachers, as indicated in the typed sheet, is reproduced below :- ’PAY scale of Asstt. Teacher of M.E. school and Graduate Teacher of High School Sl.No. Year Pay Scale of Asstt. Teacher in M.E. School Pay Scale of Gra duate Teacher in High School 1. 1977 Rs.260-7-295-EB-8-375-EB-10-425/- Rs.325-15-400-EB-116-560 -EB-18-650/- 2. 1981 Rs.525-12-585-EB-15-660-EB-20-920/- Rs.620-25-745-EB-30-895- EB-35-1315/- 3. 1989 Rs.1185-20-1225 -30-1435-40-1555-EB-40-1635-50-2035-60-2395/- Rs.1375-30-1435-40-1635-50-1885-EB-50-2035-60-2395-80-2875-100-3375/- 4. 1996 Rs.3130-60-3490-90-4030-EB-90-4480-120-5200-175-6600/- Rs.3580- 90-4480-120-4720-EB-120-5200-175-6600-250-8100-325-8750/- 5. 2010 Rs.5200-20200/- + Grade Pay Rs.5200-20200/- + Grade Pay 6. As per the Gradation List prepared on 27.2.2006, Sri Birendra Nath Sarma i.e. the petitioner No.1 in WP(C) No.5044/2008 is the senior most teacher, his date of appointment in the Graduate Scale of pay being 1.4.1976. Other two peti tioners involved in the said writ petition have been shown to have been appointe d in the Post-graduate/Demonstrator’s Scale of Pay w.e.f. 21.4.1976 and 5.4.1979 respectively. The petitioner No.2 in the said writ petition is shown to have b een transferred to the present school on 17.11.1978, which according to the Resp ondent No.4, the same is by way of fresh appointment. 7. Since the petitioner No.1 in the second writ petition has already retire d from service w.e.f. 31st January 2010 on attaining the age of superannuation, his case need not be adjudicated upon. 8. By the impugned order dated 10.11.2008, it is the Respondent No.4 involv ed in the second writ petition, who has been shown senior to all the incumbents and he has also been assigned the Principal in charge-ship of the school. As su bmitted by Mr. M.R.Pathak, learned Standing Counsel, Education, this is so in vi ew of the fact that on an erroneous interpretation of the particular circular, t he said Respondent No.4 was given Graduate Scale of Pay w.e.f. the initial date of appointment in 1977 (i.e. 10.8.77), though in fact, he was appointed in the Graduate Scale of Pay w.e.f. 24.4.1989. This aspect of the matter has been dea lt with today in a batch of writ petitions, the first one being WP(C) No.5723/20 05 (Gauri Prabha Mahanta & Ors. V. State of Assam & Ors). By the order passed t oday in the writ petition, it has been held that the Assistant Teachers, who had been appointed not as Graduate School Teacher but Intermediate School Teacher, are not entitled to receive Graduate Scale of Pay from the initial date of appo intment. The writ petitions have been dismissed. By the said order, it has also been provided that those teachers, who have been given erroneously Graduate Sca le of Pay, will be liable for appropriate necessary follow up action and the r espondents are at liberty to cancel such orders granting Graduate Scale of Pay f rom the initiate date of appointment. In view of such an order passed today, th e case of the Respondent No.4 will have to be considered afresh towards determin ation of his seniority. 9. So far as the petitioner in WP(C) No.5476/2008 is concerned, it will hav e to be decided as to whether he will be given his seniority in the Higher Secon dary School from 8.9.1988 upon his transfer from M.E. School to the said school. Mr. M.R. Pathak, learned Standing Counsel, Education as well as Mr. P.P. Barua h, learned counsel representing the petitioners in WP(C) No.5044/2008 have submi tted that the petitioner in the said writ petition is not entitled to count seni ority in the M.E. School. In this context, they have submitted that the M.E. Sch ool teachers and the High School teachers belong to two different categories and thus, there is no question of counting seniority of the teacher in the M.E. Sch ool. As regards the appointment of the petitioner in the Graduate Scale of Pay, they submit that there is nothing to show that he was appointed in the Graduate Scale of Pay and even if he was so appointed, same cannot entitle him to get sen iority from the initial date of appointment in M.E. School. 10. As regards the petitioner No.2 in WP(C) No.5044/2008, as noted above, he is holding the post of Subject Teacher and the pay scale attached to it is abov e the Graduate Scale of Pay. So far as the petitioner No.3 is concerned, he is holding the post of Demonstrator and the pay scale attached to the said post is also above the Graduate Scale of Pay. However, same by itself may not be the det ermining factor and the respective dates of joining will have to be taken into c onsideration. 11. Although by the impugned order dated 10.11.2008, the Government of Assam in the Education Department has decided the seniority of the different incumben ts, but in view of the above narration and the changed scenario and in view of t he order passed today in WP(C) No.5723/2005 (Gauri Prabha Mahanta & Ors. V. Stat e of Assam & Ors) and other batch of writ petitions, the issue relating to the seniority among the petitioners involved in both the writ petitions will have t o be decided afresh by the Government upon hearing them. Thereafter, as per the determination of the seniority, the Principal in chargeship of the school will h ave to be provided to the senior most teacher of the school. 12. In view of the above, both the writ petitions are disposed of with a dir ection to the Government of Assam in the Education Department (Commissioner & Se cretary, Secondary Education) to re-determine the seniority of the incumbents in volved in accordance with rules and consistently with the observations made abov e. 13. At this stage, Mr. D.C. Borah, learned counsel for the petitioner in the first writ petition, submits that the Respondent No.4 had abandoned the earlier service and has been serving in another department severing his ties with the p resent department and thus, he cannot count his seniority of the earlier period. This aspect of the matter shall also be decided by the said appropriate author ity. Till then, status quo as on today in respect of holding of charge of the p ost of Principal of the school shall be maintained. 14. Let the entire exercise be carried out as expeditiously as possible, pre ferably within 31st July, 2010. Necessary consequential order thereof shall als o be passed. Let a copy of this judgment and order be furnished to Mr. M.R. Pat hak, learned Standing Counsel, Education Department for his necessary follow up action.