WP(C) 3761/2006 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE I.A. ANSARI THE HON’BLE MR. JUSTICE B.D. AGARWAL (Amitava Roy, J ) A common legal issue of formidable moment involving analytical e xposition of two sets of Rules framed in exercise of powers under Article 309 of the Constitution of India to govern the recruitment and conditions of service o f the members of the Assam Secondary Education (Provincialised) Service has cobb led the proceedings seeking adjudication. 02. The Assam Secondary Education (Provincialised) Service Rules, 19 82 (for short, hereinafter referred to as ’the 1982 Rules’) and the Assam Second ary Education (Provincialised) Service Rules, 2003 (for short, hereinafter refer red to as ’the 2003 Rules’) have in succession occupied the domain of the instan t judicial survey, the debate being whether a teacher of the aforementioned Serv ice and governed by these Rules on transfer on his/ her request from one school to the other forfeits the benefit of past service for reckoning his/her seniorit y in the new institution. Decisions of this Court proclaiming irreconcilable vie ws have been rendered. Though the 2003 Rules enforced with effect from 11.8.2003 mandate through Rule 24(2)(v) thereof, loss of such seniority to be counted fro m the date of joining of the teacher in the school to which he/ she had been tra nsferred on his/ her request, such an unequivocal provision to this effect is ab sent in the 1982 Rules. The issue as well is as to the retrospectivity or otherw ise of this provision of the 2003 Rules. 03. Incidentally, W.A. No. 326/2006 (Abdus Ali vs- Jiten Thakuria & Ors.) and W.A. No. 447/2006 (Harekrishna Das -vs-Gadadhar Choudhury & Ors.) pre ferred against the renderings in WP(C) No. 2332/2004 (Jiten Thakuria -vs- State of Assam & Ors.) and WP(C) No. 1912/2006 ( Gadadhar Choudhury -vs- State of Assa m & Ors.) determining against loss of seniority had been dismissed by respective Division Benches of this Court, whereafter, a challenge was made thereto unsuc cessfully before the Apex Court in SLP(C) 2797/09 which as well was dismissed in limine. That this dismissal of the SLP by the Apex Court concludes the debate o n the issue has not been pleaded in course of the arguments. 04. A Division Bench of this Court comprised two of us (Amitava Roy, J and Hon’ble B.D. Agarwal, J) by its order dated 14.5.2010 noticing the above sequence of events directed the Registry to lay the matter before Hon’ble the Ch ief Justice for the needful to facilitate an authoritative pronouncement on the conundrum by a larger Bench. After the proceedings in hand were laid before this Bench, notice of the reference was duly circulated for the information of all concerned leading to the assimilation of the pending appeals/ writ petitions to be addressed collectively. 05. Having regard to the above backdrop, allusion to the individual facts is inessential, though by way of illustration a sketch of the pleadings in WP(C) Nos. 177/2010 and 1046/2010 from which W.A. No. 131/2010 arises would be outlined as a prefatory edifice for a fuller appreciation of the rival contentio ns. Having regard to the Service to which the aforementioned Rules cater, this a djudication would be essentially limited to the members of the Assam Secondary E ducation (Provincialised) Service. 06. We have heard Mr N Dutta, Senior Advocate assisted by Mr R. Sarm a, Advocate for the appellant in W.A. No. 131/2010 leading the arguments in endo rsement of the plea of retrospectivity of Rule 24(2)(v) of the 2003 Rules and th e consequential loss of seniority on request transfer; Mr MR Pathak, learned Sta nding Counsel, Education Department, Govt. of Assam for the official respondents and Mr PK Roy Choudhury, Advocate assisted by Mr NG Kundu, Advocate for the res pondent No.5 who has entered appearance through a caveat. We have heard as well Mr RC Saikia, Mr GC Phukan, Mr J Chetia, Mr A. Sarma, Mr AM Barbhuiya, Mr D Saik ia, Advocates for the petitioners in WP(C) Nos. 3442/2007, 3761/2006, 4349/2010, 2781/2010, 144/2011, 13/2005 and 5310/2005. Mr AS Choudhury, Senior Advocate fo r the appellant in W.A. 178/2010 and Dr. B Ahmed, Advocate for the respondent No .4 in WP(C) No. 144/2011 have also been heard. 07. The pleaded facts in bare essentials pertaining to W.A. No. 131/ 2010 reveal that the appellant Jamaluddin Ahmed, a Post Graduate in Arts in Arab ic and also possessing B.Ed. Degree was appointed on 25.8.84 as a Classical Teac her (Arabic) at Bidyapara Boys’ Higher Secondary School and joined as such on 3. 8.84 in the graduate scale of pay. His services were regularized with effect fro m 1.7.88, whereafter, on 17.3.92 he was appointed as Subject Teacher in Arabic a nd he assumed the said post on 24.3.92. Meanwhile, vide order dated 28.12.85, on e Sri Pradip Kr. Sarkar, respondent No.4, Subject Teacher in English in the Hami dabad Higher Secondary School, Dhubri was transferred to the Bidyapara Boys’ Hi gher Secondary School and he joined this institution on 10.1.86. Similarly, the respondent No.5, Samsul Haque Sheikh had also been transferred to the Bidyapara Boys’ Higher Secondary School on 11.1.85. According to the appellant, judged by the date of his joining the school as Classical Teacher (Arabic) in the Graduate Scale of Pay on 3.9.1984, he was senior to these respondents. 08. On the eve of the retirement of the Principal-in-Charge of the s chool due on 31.12.2009, the Inspector of Schools, Dhubri directed him on 30.12. 2009 to hand over the charge of the said office to the appellant who was also re quested to take over the assignment. According to the appellant, the outgoing Pr incipal-in-Charge duly handed over the charge of the office of the Principal to him. It was, thereafter, that the Director of Secondary Education by his order d ated 6.1.2010 allowed the respondent No.4 to hold the current charge of the offi ce of the Principal of the school in addition to his normal duties. He was also allowed to exercise the financial power for drawal and disbursal of the salaries etc. until further orders. Being aggrieved, the appellant instituted WP(C) No. 177/2010 assailing the order dated 6.1.2010. This Court by its order dated 11.1. 2010 while issuing notice on the writ petition directed maintenance of status-qu o with regard to the post of Principal as on that date. The appellant has assert ed that as till then he had not handed over charge of the office of the Principa l to the respondent No. 4, he continued to hold the said office. The respondent No.4 entered appearance in WP(C) No. 177/2010 and also filed an interim applicat ion (registered as M.C. No. 508/2010) seeking vacation/modification/ alteration of the order dated 11.1.2010. An affidavit-in-opposition was filed by the appell ant. 09. The respondent No.5, Samsul Haque Sheikh thereafter joined the f ray questioning the legality and validity of the seniority list dated 29.12.2009 /1.1.2010 of the teachers of the Bidyapara Boys’ Higher Secondary School depicti ng the appellant, the respondent No.4 and the respondent No.5 at serial No. 1, 7 and 2 respectively. On 15.2.2010, this Court issued Rule on this petition and in the interim, restrained the official respondents from acting on the impugned seniority list. Both these writ petitions were analogously heard and by the jud gment and order dated 28.4.2010 impugned in this appeal, WP(C) No. 177/2010 was dismissed holding the respondent No.4 to be senior to the writ appellant. WP(C) No. 1046/2010 was allowed determining the respondent No.5 to be senior to the a ppellant. The order dated 6.1.2010 whereby the respondent No.4 was allowed to ho ld the current charge of the office of the Principal of the school was sustained and consequently the amendment/ modification of the impugned seniority list was ordered. 10. In rendering the decision impugned in the appeal, the learned Si ngle Judge negated the contention of the appellant as well as the official respo ndents that on transfer on own request from the respective schools the responden t Nos. 4 and 5 forfeited their past services for the purpose of seniority. It wa s held that computed on the basis of the dates of appointment of the three incu mbents, the respondent No.4 was senior to the other two and that in absence of any indication in the orders of transfer that the same would entail loss of seni ority of the transferee teachers, their past services could not be wiped off. It was observed as well that denial of T.A. & D.A. did not per se signify effaceme nt of the past service for the purpose of seniority and that as the orders of tr ansfer did not mention that those were on the request of the incumbents concerne d, allocation of lower seniority to the respondent Nos. 4 and 5 was unsustainabl e in law and on facts. That the orders of transfer were passed before the enforc ement of the 2003 Rules which did not have any retrospective application was als o recorded. Referring to Rule 13 of the 1982 Rules, it was held that in absence of any indication to that effect an incumbent on transfer on request would not forfeit his/ her past service for the purpose of seniority. 11. Mr Dutta has persuasively argued that having regard to the frame work of the 2003 Rules and the contingencies the same seek to address, it is pat ently retrospective in operation and, thus, loss of seniority in terms of Sectio n 24(2)(v) is an undeniable consequence even in respect of past transfers on own request. Referring to the various provisions of the 1982 Rules defining Service , Class and Cadre, the learned senior counsel has urged that each grade under Ru le 3(1) is an independent cadre and that in terms of Rule 13(1) the inter-se sen iority of the then existing employees in the respective cadre is only to be dete rmined on the basis of the factors as enumerated therein. Mr Dutta has insisted that the determinants identified in Rule 13(1) for the assignment of seniority o f the existing employees are neither applicable nor relevant for the members ent ering into the Service on or after the appointed date of enforcement of the Rule s i.e. 27.5.82 as the same is determinable on the basis of merit ascribed by the Selection Board envisaged by the Rules on the basis of selection(s) as contempl ated by Rule 13(3). The learned senior counsel has maintained that invocation of the norms prescribed by Rule 13(1) to determine the inter-se seniority of the e mployees inducted in the Service after 27.5.82 is impermissible. As regular sele ction in terms of the 1982 Rules for recruitment to the Service had not been hel d for all practical purpose Rule 13(3) was given a go-bye and adhocism was resor ted for suiting individual interests on considerations wholly irrelevant and col lateral, he urged. The learned senior counsel argued that it was in this backgro und, in order to herald a determinate model of action that a bipartite agreement was entered into on 19.5.89 between the State Government and the Assam Secondar y Education Teachers’ and Employees’ Association to maintain schoolwise seniorit y of the teachers to ensure promotion to the seniormost incumbent of the institu tion and not to a transferee teacher from other school. To reinforce this plea, Mr Dutta has relied on the decision of this Court in Ghanakanta Das -vs- State o f Assam & Ors., 1996 (1) GLT 548. While exhaustively referring to the two stream s of decisions airing irreconcilable views on the issue, individual analysis whe reof would follow, the learned senior counsel also sought to draw sustenance to his plea of retrospectivity of the 2003 Rules in general and Rule 24(2)(v) in pa rticular from the Circular dated 30.8.2001 of the Director of Secondary Educatio n, Assam, Clause-7 whereof postulated loss of seniority of a teacher transferred from one school to another on his/ her own request. According to Mr Dutta, the concept of schoolwise seniority which is ingrained in the 1982 Rules met judici al imprimatur in Ghanakanta Das (supra) and metamorphed in the Policy dated 30.8 .2001 to be eventually engrafted in Rule 24(2)(v) of the 2003 Rules. Any determi nation of inter-se seniority of teachers on the general and unreserved applicati on of the norms contained in Rule 13(1) following inter-school transfer on reque st in disregard of these considerations is grossly erroneous and non-est in law, he maintained. 12. Mr Dutta asserted that the text of Rule 24(2) is in substance a replica of the contents in Clause-2, 5 and 7 of the Policy dated 30.8.2001 and t antamounts to legislation by incorporation. He reiterated that the language empl oyed in Rule 24(2)(iii) and (v) testifies those to be of retrospective effect. A ccording to the learned senior counsel, Rule 24 assigns legislative status to t he Policy dated 30.8.2011 to resolve the stalemate resulting from the conflicti ng decisions of this Court on the issue. Highlighting the essential attributes o f a retrospective law, the learned senior counsel insisted that Rule 24(2)(v) in the background of its incorporation in the 2003 Rules is draped therewith and o ught to be accorded retrospectivity to attain the underlying legislative purpose . Apart from the decisions of this Court expressing divergent views on the issue , the learned senior counsel pressed into service the pronouncements of the Apex court in -- i) K.P. Sudhakaran & Anr. -vs- State of Kerala & Ors., (2006) 5 SCC 386; ii) The State of Bombay (now Maharashtra) -vs- Vishnu Ramchandra, AIR 1961 S C 307; iii) Shri Chaman Singh & Anr. -vs- Srimathi Jaikaur, (1969) 2 SCC 429; iv) Zile Singh -vs- State of Haryana & Ors., (2004) 8 SCC 1; v) Shyam Sundar & Ors. -vs- Ram Kumar & Anr., AIR 2001 SC 2472; 13. Mr Pathak representing the Education Department of the State has submitted that the appointments in the schools governed by the Rules had throug hout been institutionwise even on selection. According to him, seniority of the teachers was also maintained schoolwise and no concept of inter-school transfer was entertained. He insisted that this enjoinment did not ease even on the pronv icialisation of service and school-wise compartmentalization was maintained. Tho ugh inter-school transfer used to occur on own request even after the 1982 Rules , schoolwise seniority was not undermined, he pleaded. Referring to the 2003 Rul es, the learned Standing Counsel argued that transfers thereunder are contemplat ed only in public interest as indicated in Rule 28(2) and that the same if occas ioned on any incumbent’s request, loss of seniority is to ensue in terms of Rule 24(2)(v). Mr Pathak argued that the 2003 Rules were patently retrospective, whe reby the implicit was made explicit. He referred to the Circular dated 30.8.2001 to content it to embody a Government policy on the issue acting as a transition al provision bridging the two Rules. Mr Pathak also referred to the written inst ructions contained in the letter No. GB-EST/CC/22/2010/206 dated 23.8.2011 of th e Commissioner and Secretary to the Govt. of Assam, Education (Secondary) Depart ment to project the departmental stand in supplementation of his address. 14. Mr Roychoudhury per contra has asserted with reference to the As sam Secondary Education (Provincilisation) Act, 1977 and both the Rules that the language used in Rule 24(2)(v) ipso facto would not make the provision retrospe ctive in operation. He insisted that as by Rule 32 of the 2003 Rules the 1982 Ru les and the Circular dated 30.8.2001 had been repealed to extinction, no declara tory or clarificatory emblem can be ascribed to the former legislation to permit its retrospective operation. Dismissing the relevance of the decision of this C ourt in Ghanakata Das (supra) projected to be a binding precedent propounding sc hoolwise seniority, the learned counsel argued that the above decision was based on consensus and that loss of seniority on request transfer was contingent on t he facts of each case and could not be assumed without reference thereto. The l earned counsel adverted to Section 30 of the Land Acquisition (Amendment) Act, 1 984 amending the Land Acquisition Act, 1894, to underline that in absence of a t ransitional provision akin thereto and the absolute repeal of the 1982 Rules, Ru le 24(2)(v) has to be essentially prospective, there being no intervening legisl ation to suggest its retrospectivity. Referring to the principles of interpretat ion of statutes relevant for ascertaining as to whether a legislation is prospec tive or retrospective in nature, the learned counsel has urged that the 2003 Rul es when tested on the basis thereof can by no means be adjudged to be retrospect ive in operation. It being a remedial and not a declaratory law effectuating rad ical changes in the 1982 Rules, it essentially is prospective in nature, he insi sted. This is more so in absence of any precise and obvious legislative mandate to this effect discernible in the 2003 Rules, he urged. The following decisions were relied upon:- i) S. S. Bola & Ors. -vs- B.D. Sardana & Ors., (1997) 8 SCC 522; ii) India Tobacco Co. Ltd. -vs- The Commercial Tax Officer, Bhavanipore & Or s. (1975) 3 SCC 512 iii) Kolhapur Canesugar Works Ltd. & Anr. -vs- Union of India & Ors. (2000) 2 SCC 536 iv) Anderton -vs- Ryan, 1985 (2) AER 358 v) Sajjan Singh -vs- The State of Punjab, AIR 1964 SC 464 vi) Sakuru -vs- Tanaji, AIR 1985 SC 1279 vii) K. S. Paripoornan -vs- State of Kerala & Ors., (1994) 5 SCC 593 viii) The Central Bank of India & Ors. -vs- Their Workmen, AIR 1960 SC 12 ix) Bishnu Narain Mishra -vs- State of Uttar Pradesh & Ors., AIR 1965 SC 156 7 x) Master Ladies Tailors Organisation & Anr -vs- Minister of Labour & Natio nal Service, 1950 (2) AER 525 15. Mr RC Saikia has assiduously argued with particular reference to Rule 1(2) of the 2003 Rules that the same is of prospective effect. Contending that transfer on request having been permitted on genuine and compelling circums tances and the inter-se seniority of the incumbents having been fixed in terms o f the norms prescribed by Rule 13(1) of the 1982 Rules, retrospective effect to the 2003 Rules would result in severe prejudicial consequences to the concerned incumbents many of whom have retired from service as on date. He urged that in a bsence of specific indication to the contrary, the 2003 Rules have to be adjudge d to be prospective to prevent highly iniquitous and disastrous fallout. Mr Saik ia to buttress his arguments relied upon the decisions of the Apex Court in -- i) B.L. Gupta & Anr. -vs- M.C.D, (1998) 9 SCC 223 ii) K.P. Sudhakaran & Anr. -vs- State of Kerala & Ors.,(2006) 5 SCC 386, iii) Tejshree Ghag & Ors. -vs- Prakash Parashuam Patil & Ors., (2007) 6 SCC 2 20 And also of this Court in Gopal Chandra Sarkar & Ors. -vs- State of Assam & Ors., 2007 (4) GLT 410. 16. Mr Phukan, Mr Chetia, Mr Sarma and Mr Barbhuiya adopted the argu ments advanced by Mr Dutta. Mr Barbhuiya in addition while referring to the vari ous provisions of the 2003 Rules submitted that any transfer effected prior ther eto was governed by the 1982 Rules . He reiterated that Rule 24(2)(v) clearly vi sualize schoolwise seniority and is of retrospective effect. 17. Whereas Mr Choudhury appearing for the appellant in W.A. 178/201 0 pointed out that the same involved a middle school and was thus beyond the pur view of the present scrutiny, but on principle endorsed the points urged by Mr D utta, Dr. Ahmed appearing for the respondent No.4 in WP(C) No. 1440/2011 insiste d that the present determination is inessential for the issues involved therein. Mr D Saikia referred to the decision of a Division Bench of this Court in W.A. No. 515/94 by way of portrayal of his stand. 18. Mr Dutta in his reply argued that the issue in view of the vacil lating stand of the State Government ought to be decided on merit notwithstandin g the consequences to follow. In reaffirmation of his assertions already made, t he learned senior counsel maintained that the 2003 Rules were patently declarato ry in nature and thus ought to be accorded retrospectivity for the actualization of the purpose for its formulation and enforcement. 19. This Court responding to the challenges from time to time on the determination of inter se seniority of the teachers governed by the two Rules i n the context of own request transfers has responded both in favour and against the impugnments. In view of the backdrop in which the issue under scrutiny has been referred to this Bench, advisable it would be to have a bird’s eye view of the contrasting determinations. The decisions rendered in our estimate are predo minantly fact oriented without any occasion for an indepth inquest of the provis ions of the two Rules for an authoritative pronouncement on the issue in the tra nsitional legislative background. 20. In Sushil Pal (Supra), the petitioner’s transfer on request was with his knowledge that he would be junior most in the school to which he was th us posted. He was also denied TA/DA for the purpose. Though, the initial ad-ho c appointments of the parties in the fray were later on regularised with retrosp ective effect, the challenge made by the petitioner against loss of seniority wa s rejected. 21. In Raisuddin (Supra) a Single Bench of this Court returned a fin ding that whenever a person is transferred on his own request he/she is not enti tled to carry his seniority as otherwise one may indulge in a fishing expedition to become the seniormost teacher in some other school and thus become entitled to earn the eligibility for consideration for promotion to the next higher post therein. 22. With reference to Rule 24(2)(V) of the 2003 Rules, the petitione r in Madan Chutia (Supra) who had been transferred to the school of Respondent N o.4 on 23.02.1987 on his own request was held to be junior than the latter. Ref erence was also made to the administrative guidelines/policy contained in the ci rcular dated 30.08.2001. As transfer of Dimbeswar Saikia (Respondent No.4) to t he school of the petitioner therein was made on 04.05.2004 i.e. after the enforc ement of the 2003 Rules, this Court interfered with the order construing the lat ter to be the senior to the former and the issue of inter se seniority was reman ded to the concerned State authority under the said Rules. Noticeably, in Raisu ddin (Supra) and Madan Chutia (supra), the State respondents had adopted the ple a of loss of seniority following own request transfer and reliance on the aforem entioned administrative guidelines/policy was also made. 23. In Abdul Matin Talukdar(Supra), 2006 Suppl. GLT 493, the Respond ent No.1 therein had been transferred on 03.09.1994 to the school of the appella nt in which he had joined on 13.05.1984. The Respondent No.1 however in his pre vious school had joined as Science Teacher on 30.09.1983 and his services were p rovincialised with effect from 01.01.1984, he having been allowed to hold the charge of the office of the Headmaster of Kochudala High School to which he had been transferred in preference to the appellant, a dispute on their inter se se niority surfaced. A Division Bench of this Court in this appeal inter alia noti ced that the transfer was prior to the date of the administrative guidelines/pol icy dated 30.08.2001 and also the admission of the learned Standing Counsel, Edu cation Department of the State that 2003 Rules was prospective in operation. Th