WP(C) 3813/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA The dispute raised in the writ petition relates to seniority between the petitio ner and the respondent No. 4 and the consequential claim for charge of Principal of the school in question. 2. The petitioner was first appointed on 20.5.1973, as Assistant Teacher of Tulsibari M.E. School by the Managing Committee of the school. Subsequently his service was regularized with effect from 20.5.1973. The school was provincialis ed with effect from 1.3.1978 and the petitioner was appointed as the Headmaster of the school for a period of three months by an order dated 19.10.1979 issued b y the Deputy Inspector of Schools, Rangia. Thereafter he was allowed to act as H eadmaster by subsequent orders issued from time to time extending his services. Eventually by Annexure-C order dated 21.1.1980 his services as Headmaster was ex tended until further order. 3. As against the aforesaid position of the petitioner, the respondent No. 4 was first appointed on 20.12.1972 as Assistant Teacher of a High School called Borghuli Neheru High School, which was subsequently provincialised with effect from 1.10.1977. The respondent No. 4 was transferred to the school called Tulsib ari Bahumukhi High School by order dated 2.2.1993 issued by the Inspector of Sch ools, Rangia on the basis of the request made by him. He was so transferred agai nst a newly sanctioned vacant post of Science Graduate Teacher. In the order of transfer it was indicated that such transfer was on own request of the responden t No. 4 and that no TA and DA would be admissible for the purpose. 4. The respective schools in which of both the incumbents had been working i.e. Tulsibari M.E. School and Tulsibari Bahumukhi High School were amalgamated by Annexure-F order dated 14.9.2005. As per the terms and conditions of such ama lgamation, all the qualified staff of M.E. School serving against duly sanctione d posts were to be absorbed in the amalgamated High School with effect from the date of amalgamation with their respective pay and prospect, but with amalgamate d seniority list. After the amalgamation of the schools to one entity, it came t o be known as Tulsibari Bahumukhi H.S. School. 5. By Annexure-G letter dated 21.12.2005 the Inspector of Schools intimated the Principal of the school regarding the resultant conditions of the amalgamat ion. In the letter, the teaching and non-teaching staff of the amalgamated schoo l were also indicated. While the petitioner was included at serial No. 3 with th e designation as Vice-principal i/c with date of joining as 20.5.1973, the respo ndent No. 4 was included at serial No. 19 with date of joining as 1.1.1973. Both the incumbents were shown to be in the pay scale of Rs. 3580-8750/-. 6. Placing reliance on the Annexure-H guidelines dated 30.8.2001, it is the case of the petitioner that the respondent No. 4 upon his transfer to the prese nt school from his earlier school by the aforesaid order dated 2.2.1993 (Annexur e-E) would count his seniority in the present school with effect from the date o f joining the school. In other words the said respondent cannot count his past s ervice for seniority. Taking this date of joining in the new school by the respo ndent No. 4, it is the case of the petitioner that he is senior to the said resp ondent. 7. With the retirement of the incumbent holding the charge of Principal of the school with effect from 28.2.2006 and upon his release, the petitioner was h anded over the charge by the said incumbent describing him as the seniormost tea cher of the amalgamated school. The petitioner in turn intimated the Inspector o f Schools about his taking over of the charge of Principal from the outgoing inc umbent. Thereafter formal order dated 27.3.2006 was passed by the Director of Se condary Education, Assam allowing the petitioner to hold charge of Principal in addition to his normal duties as Assistant Teacher under FR 49(c). 8. The respondent No. 4 in the meantime, moved this Court by filing the wri t petition being WP(C) No. 1728/2006 challenging the action of the outgoing Prin cipal i/c of the school in handing over charge to the petitioner. The writ petit ion was disposed of by order dated 22.3.2006 with the direction to the Inspector of Schools to verify as to whether the respondent No. 4 joined the school and w as given Graduate Scale of pay earlier than the writ petitioner and if so, the r espondent No. 4 should be allowed to continue as Principal i/c. The relevant por tion of the order dated 22.3.2006 is quoted below The order passed by the Inspector of Schools shows that the Principal In-charge was directed to hand over charge of his post to the senior-most teacher of the school on 20.2.2006 on his superannuation. It is alleged that the In-charge Prin cipal instead of handing over charge to the writ petition who is the senior-most teacher handed over charge to the private respondent No. 5. The statement of seniority of teachers (Annexure-VI) shows that the writ petitio ner joined the school on 1.1.1973 was given the graduate scale with effect from 1.4.1976, whereas the private respondent No. 5 joined the school on 20.5.1973 an d was given the graduate scale of with effect from 1.1.1979. Prima facie the sta tement annexed with the writ petition as Annexure-VI shows that the writ petitio ner is senior to the private respondent. Having regard to the above facts which emerge from the materials made available by the petitioner on oath, this petition is disposed of with direction to the In spector of Schools, KDC, Guwahati to verify as to whether the writ petitioner jo ined the school and was given graduate scale of pay earlier than the private res pondent and, if so, the petitioner shall be allowed to continue as In-charge Pri ncipal. This exercise shall be completed within a period of 7 days from the day when a copy of this order is furnished to him by the writ petitioner. 9. The aforesaid order was passed without issuing notice to the writ petiti oner. In fact the writ petition was disposed of at the motion stage itself. Afte r the order so passed by this Court, the Director of Secondary Education, Assam by his Annexure-N order dated 24.7.2006 withdrew the earlier order dated 27.3.20 06 (Annexure-L) by which the petitioner was allowed to hold charge of Principal. By the said order, the Inspector of School was also directed to comply with the said order passed by this Court. Pursuant thereto, the Inspector of Schools by his Annexure-P order dated 29.7.2006 allowed the respondent No. 4 to hold charge of Principal of the school. Being aggrieved the petitioner, filed the instant w rit petition. 10. The respondent No. 4 in his affidavit has denied the claim of the petiti oner that he is senior to him. As regards the amalgamation of the M.E. School in which the petitioner had been working with that of the school in which the resp ondent No. 4 had been working, which by the time amalgamation took place stood u pgraded as a Higher Secondary school, the respondent No. 4 has contended that th ere is no provision for amalgamation of M.E. School with that of H.S. School. In this connection, the respondent No.4 has placed reliance on the Annexure-1 and 2 orders dated 16.7.1983 and 30.8.2005 issued by the Government of Assam in the Education Department. 11. Referring to the Annexure-3 letter dated 19.10.05 addressed to the Direc tor of Secondary Education, Assam by the then Principal of the school, it is the case of the respondent No. 4 that since he has received the Graduate Scale of p ay with effect from 1.4.1973 as against the petitioner’s with effect from 19.10. 1979, he is senior to the petitioner. As regards the Annexure-H guidelines dated 30.8.2001 mentioned above, the respondent No. 4 has contended that the same doe s not have any retrospective effect and that even otherwise also his past servic e before transfer to the present school cannot be obliterated altogether. Upon a reference to Annexure-4 series orders pertaining to transfer on own request wit h the stipulation that the incumbents would have no claim for seniority over the existing staff of the school, it is the case of the respondent No. 4 that in hi s order of transfer, there being no such stipulation, he cannot be made to lose his past service in the earlier school for the purpose of seniority. 12. Annexure-8 is the letter dated 4.5.2006 addressed to the Director of Sec ondary Education, Assam by the Inspector of Schools intimating that the responde nt No. 4 was receiving Graduate Scale of pay earlier than the petitioner. By the said letter it was also intimated that there was no sanctioned post either of A ssistant Headmaster or of Vice-principal in the amalgamated school i.e. Tulsibar i Bahumukhi H.S. School. Against the aforesaid affidavit-in-opposition filed by the respondent No. 4, the petitioner has filed an affidavit-in-reply reiterating the stand in the writ petition. 13. In the additional affidavit filed by the petitioner, the fact that the r espondent No. 4 received graduate scale of pay with effect from 1.4.1976 and the writ petitioner with effect from 19.10.1979 has been admitted. However, his sta nd is that since the respondent No. 4 was transferred to the present school by o rder dated 2.2.1993 and he joined on 5.2.1993, his past service stood obliterate d and he would count seniority only with effect from 5.2.1993. Placing reliance on Annexure-3 letter dated 14.5.07, the petitioner has contended that as per the guidelines of Education Department upon amalgamation of both the schools, the p etitioner being the Headmaster of the erstwhile M.E. School is entitled to becom e the Assistant Headmaster of the amalgamated school and consequently is also en titled to hold the charge of Principal of the Higher Secondary School. 14. The official respondents supporting the case of the petitioner have cont ended in their affidavit that, upon amalgamation of the schools, as per the prov isions of the Assam Secondary Education (Provincialised) Service Rules, 2003, th e petitioner is entitled to become the Assistant Headmaster of the amalgamated s chool. Upon a reference to the said rules it is also contended that the seniorit y of the respondent No. 4 in the present school was counted from the date of joi ning the school upon transfer from the earlier school. 15. I have heard Dr. Y.K. Phukan and Mr. A.S. Choudhury, learned Sr. Counsel assisted by Mr. R. Ali, learned counsel for the petitioner as well as Mr. T. Is lam, learned Standing Counsel, Education Department. I have also heard Mr. J. Ab edin, learned counsel representing the respondent No. 4. 16. Noticing that the official respondents have not responded to the writ pr oceeding by making their position clear, this Court by order dated 7.6.2007 issu ed direction requiring the said respondents to file affidavit-in-opposition deal ing with the contentions raised in the writ petition and also to clarify the fol lowing: 1. How the seniority is determined among the teachers of the amalgamated ME and High/H.S. School? 2. Whether upon amalgamation, the Assistant Headmaster of the school is entitled to function as Vice Principal of the High/H.S. School? 3. Whether the M.E. School teachers are entitled to graduate scale of pay and ev en if the Headmaster of M.E. School is entitled to graduate scale of pay, whethe r that will count towards seniority in the graduate cadre upon amalgamation of M E school with that of High/H.S. school? 4. What is the required qualification for being appointed/promoted as Principal of High/H.S. School? 5. The respondents shall also clarify as to whether there is any rule and/or exe cutive instruction towards amalgamation of ME school with that of High/H.S. Scho ol. 6. Whether there is any sanctioned post of Vice-Principal in the school where th e petitioner is allowed to hold the charge of the Vice-{Principal? 7. The view of the Govt. in the matter of transfer of the respondent No. 4 way b ack in 1993, as to whether upon such transfer of the respondent No. 4, he would lose seniority and if so, under what rules? 8. The respondents shall also indicate the pay scale of ME school and High/H.S. school teachers in different cadre. 17. The respondents No. 1 and 2 i.e. the Commissioner & Secretary, Education and the DSE, Assam have filed the affidavits only after the aforesaid direction s of this Court. In the affidavit they have referred to the guideline dated 16.7 .1983 relating to the amalgamation of M.E. school with High School situated in t he same campus. As per the said guideline, in consideration of the administrativ e experience gained by the Headmaster of M.E. School, he shall be considered for appointment as Assistant Headmaster of the amalgamated school subject to the fo llowing conditions: I. He has necessary academic qualification II. He has served as Headmaster of M.E. schools for a minimum period of 10 y ears. For a founder Headmaster of M.E. Schools, the minimum period should be 5 y ears. III. He was not Assistant Teacher in the H.E. school with which the M.E. scho ol is amalgamated prior to joining as Headmaster of the M.E. School. IV. In all other cases, the adhoc appointment of the Assistant Headmaster of the amalgamated institution shall be in accordance with seniority as graduate i n H.E. schools. The adhoc appointment to the post of Assistant Headmaster of ama lgamated institution shall have no right whatever for appointment as Assistant H eadmaster of amalgamated school unless selected duly, when the process of select ion take place. 18. Dealing with the further queries made by order dated 7.6.2007, further clarifications made in the affidavits are that upon upgradation of High School t o Higher Secondary School, the existing Headmaster is entitled to function as Vi ce-Principal of the same school as the post of Headmaster and Assistant Headmast er are abolished with the creation of the post of Principal and Vice-Principal i n the upgraded Higher Secondary School. Upon a reference to Government circular dated 19.10.2005 and Rule 14 of the Assam Secondary Education (Provincialised) S ervice Rules, 2003, it has been stated in the affidavits that the Headmaster of the M.E. School with graduate degree is to be designated as Assistant Headmaster (Academic) of the amalgamated High School. 19. In the affidavits, further stand of the respondents is that there is a s anctioned post of Vice-Principal in the amalgamated school and the petitioner wa s allowed to hold charge of the same. As regards the seniority of the respondent No. 4, it has been stated that since he was transferred on his own request, as per Rule 24 of the aforesaid rules of 2003, he cannot claim his past service tow ards seniority and his seniority will be counted from the date of joining the sc hool. As regards the pay scale of Headmaster of M.E. School and Assistant Teache r of Higher Secondary School, same is stated to be Rs. 3580-8750/-. 20. From the above stand in the affidavits, which the respondents have proje cted in response to the aforesaid order dated 7.6.2007, what has emerged is that the respondent No. 4 is not entitled to count his seniority from his initial da te of appointment in another school, but is entitled to count his seniority from the date of joining in the present school and that the petitioner being the Hea dmaster of the M.E. School is entitled to act as Assistant Headmaster of the ama lgamated school. 21. As regards the plea of the petitioner that the respondent No. 4 cannot c ount his seniority from his initial date of appointment in another school, which is 20.12.1972 and that upon his transfer to the erstwhile Borghuli Neheru High School (since upgraded as Higher Secondary School), in 1993 by order dated 2.2.1 993, which school he joined on 5.2.1993, his seniority will be counted only with effect from 5.2.1993, same will have to be considered taking into account the f act that the petitioner himself was in another school lower in rank and status. His existence in the amalgamated H.S. School came into being upon amalgamation o f the M.E. School with that the H.S. School only in 2005, when both the schools were amalgamated by Annexure-G order dated 21.12.2005. It is in this context, le arned counsel for the respondent No. 4 argued that the petitioner has no locus s tandi to make any grievance against the seniority of the respondent No. 4 in the High School, which according to him, is to be counted from the initial date of appointment and not from the date of joining the new school. 22. At the time, when the respondent No. 4 was transferred to the present sc hool, which at that time was a High School, which was later on upgraded as Highe r Secondary School, the petitioner was nowhere in the picture, he being in the s ervices of another school and that too an M.E. School, lower in rank and status than that of a High School. At that relevant point of time, the rules holding th e field governing the service conditions of the High School was Assam Secondary Education (Provincialised) Service Rules, 1982 framed under Section 3 (3) of the Assam Education (Provincialisation) Act, 1977. On the other hand the M.E. Schoo ls are governed by different sets of Act and Rules. In this connection, the lear ned Standing Counsel, Education Department as well as Mr. Abedin learned counsel for the respondent No. 4 have referred to Assam Elementary Education (Provincia lisation) Act, 1974 and the Assam Elementary Education (Provincialisation) Rules , 1977. That being the position, the petitioner, an M.E. School teacher, who sub sequently act as Headmaster of the M.E. School, was altogether in a different se rvice and cadre, unlike the respondent No. 4, who was in the cadre of graduate t eacher (Grade-IV) under Rule 3 of the aforesaid Rules of 1982. 23. The Assam Secondary Education (Middle English Schools and High Schools) (Provicnialisation) Rules 1979 envisages separate eligibility for provincialisat ion of High Schools and M.E. Schools. That the two schools are quite distinct an d separate and the teaching and non-teaching staff are in different cadres, is c learly discernible from the provisions of the said Rules. When there is requirem ent of graduate teachers in the High School, there is no such requirement in M.E . Schools. Only exception is that the Headmaster of the M.E. School should be a graduate relaxable upto intermediate, P.U. (two years). Further, the procedure f ormulated laid down under Section 27 (1) of the Assam Elementary Education (Prov incialisation) Act, 1974, the post of Headmaster of M.E. Schools shall be promot ional posts to be filled up on the basis of selection. The educational qualifica tion prescribed is atleast Matric/HSLC, Normal or atleast Intermediate or its eq uivalent or above. Particular period of training is also prescribed. 24. As per the provisions of the aforesaid Rules of 1982 (Rule 13), inter-se seniority of the existing employees in the respective cadre shall be determined in relation to (a) date of continuous appointment (b) date of joining and (c) d ate of birth. Unlike the present set of Rules of 2003, in the said Rules of 1982 , there was no concept of schoolwise seniority and it was the cadre seniority, i rrespective of any transfer from one school to another. Learned counsel represen ting the parties to this proceeding have admitted that the Rules of 2003 has no retrospective application. If that be so, at the time of transfer of the respond ent No. 4 in 1993, the Rules of 1982 was holding the field. Consequently, his se niority was to be determined on the basis of the said set of Rules and not under the new set of Rules of 2003. Unlike Rule 24 (2) (v) of the Rules of 2003, whic h specifically provides that a teacher, on transfer on his own request from one school to anther will get his seniority in the new school from the date of joini ng on transfer, the earlier set of Rules i.e. 1982 Rules had no such provisions inasmuch as it was the cadre seniority as a whole and not school wise seniority. 25. Apart from the above, the respondent No. 4 although was transferred on h is own request by Annexure-E order dated 2.2.1993 and no provision was made for TA and DA, that by itself cannot lead to the inference that the respondent No. 4 had foregone his seniority. Even if any request is made for transfer, unless it is made known to the incumbent that upon acceptance of such request he would lo se his past seniority and the incumbent accepts such a condition and the same is also reflected in the order of transfer, later on the authority cannot say that the past service rendered by the incumbent stands altogether obliterated for th e purpose of seniority. It is in this context, learned counsel for the responden t No. 4 has referred to the decision of this Court reported in 2007 (2) GLT 329 (Sujit Paul Vs. State of Assam & Ors.). 26. The Division Bench of this Court in W.A. No. 448/2003 (Abdul Matin Taluk dar Vs. Haricharan Medhi) decided on 3.11.2006 has held that the Rules of 2003 h as no retrospective application. It has also been held that only because the tra nsfer order did mention about non-entitlement of TA and DA for the purpose, the conclusion cannot be to the effect that the transfer was on the own request of t he incumbent. It is true that in the order of transfer of the respondent No. 4, it was mentioned that such transfer was on the basis of his own request, but not hing has been shown that the respondent No. 4 agreed for loss of his seniority. The order also did not indicate that the respondent No. 4 upon his transfer on o wn request would not be entitled to count his past service. This aspect of the m atter will also have to be considered in the context of the 1982 Rules, which sw as prevalent at that point of time. 27. Learned counsel for the petitioner has placed reliance on the decision o f the Apex Court reported in AIR 2006 SC 2138 (K.P. Sudhakaran Vs. State of Kere la). He has also placed reliance on the decision of this Court reported in 2002 (1) GLT 216 (Rais Uddin Vs. State of Assam). In the case before the Apex Court, there was definite set of Rule providing loss of seniority on transfer from one department to another affected on own request, unlike the present case in which under 1982 Rules there was no such provision. In the second case, the learned co unsel for both the parties submitted that the Rules were silent in the matter of seniority on request transfer. 28. The position of the 1982 Rules was not brought to the notice of the Cour t. It was also found from the record that the transfer was not on public demand as was alleged. In the instant case, no records have been produced. Further, as noted above, it is only Rule 24 of the 2003 Rules, which specifically provides l oss of seniority on request transfer, which was not the position under 1982 Rule s. However, at that time the Annexure-H guidelines dated 30.8.2001 issued by the Director of Secondary Education, Assam relating to fixation of seniority was in existence, which provided such a clause as