WA 324/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE I.A. ANSARI HON’BLE SMT. JUSTICE ANIMA HAZARIKA Ranjan Gogoi, J Rule 24(2)(ii) of the Assam Secondary Education (Provincialised) Service Rules, 2003, having been adjudged to be constitutionally impermissible by a learned Single Judge of this Court the Writ Appeals under consideration hav e been instituted. A Government Letter dated 3.8.90, which has been understood t o have laid down essentially the same prescription as contained in Rule 24(2)(ii ) is the subject matter of the Writ Petitions that were heard along with the app eals in question. The views expressed by a Division Bench of this Court in W.A. No. 476, 560 and 562 of 2002 with regard to the purport and effect of the Govern ment Letter dated 3.8.90 having been highly debated and contrary as well as mutu ally inconsistent orders having been recorded by several Single Benches, a refer ence of the question of validity of Rule 24(2)(ii) to a larger Bench was conside red necessary. This is how the Writ Appeals and the Writ Petitions came to be re ferred to this expanded Bench. 2. The leading case where arguments have been offered is W.A. No. 1 28/2005. In the said Appeal the order dated 14.12.2004 passed by the learned Sin gle Judge in, inter alia, WP(C) No. 7125/2003 has been assailed. Learned counsel s for both sides have agreed that the aforesaid order of the learned Single Judg e in so far as WP(C) No. 7125/2003 is concerned, may be set aside and the writ p etition i.e. WP(C) No. 7125/2003 be re-heard. The reasons for the aforesaid stan d taken need not detain the Court. As already indicated, the core issue arising in all the cases is one relating to the constitutional validity of Rule 24(2)(ii ) of the Assam Secondary Education (Provincialised) Service Rules, 2003. We, the refore, proceed to adjudicate the said issue in the light of the facts of WP(C) No. 7125/2003 which facts would be largely common to the other cases under consi deration. 3. The writ petitioners are Classical Teachers who possess a gradua te degree. Classical Teachers for the purposes of the present cases are those wh o had Hindi, Sanskrit, Arabic, Persian, Assamese and Boro as one of the subjects while acquiring the degree qualification. They teach the aforesaid languages in the schools in which they are/were appointed. The expression Classical Teacher is not defined in any of the statutory provisions that will require considerat ion by the Court. It may also be put on record, at this stage, that there are ot her species of Classical Teachers who, however, are not graduates. The cases of such Classical Teachers are not the subject matter of any of the writ appeals or writ petitions covered by the present order. 4. With a view to provide for provincialisation of secondary educat ion covered by the deficit scheme prevailing in the State of Assam, the Assam Se condary Education (Provincialisation) Act, 1977 (hereinafter referred to as ’the Provincialisation Act, 1977’) was enacted which came into force w.e.f 1.10.1977 . Section 2 (v) and (vi) which defines the expression ’employee’ and ’existing e mployee’, being relevant for the purposes of the present cases, are extracted be low: (v) employee means a person in the employment of a school working against a re gularly sanctioned post and whose appointment has been approved by the School au thority wherever such approval was necessary; (vi) existing employee means an employee who is, on the appointed day, in the regular pay roll, employee against regular sanction and whose appointment has be en approved by the school authority. 5. Section 3 of the Act provides that on and from an appointed date i.e. the date on which the Act came into force, all employees of all secondary schools in the State of Assam are deemed to have become employees of the State G overnment with effect from the date of their appointments. Section 3(3) provides that services of all employees shall be encadred in appropriate cadres in acco rdance with the Rules framed by the State Government. 6. At the time of provincialisation effected under the provisions o f the Provincialisation Act, 1977 in the schools covered by the Act, there were Graduate Teachers as well as graduate Classical Teachers. By virtue of Section 3 (1) of the Act, services of both categories of teachers were provincialised and they became State Government employees with effect from the dates of their initi al appointments. However, their encadrement in appropriate cadres was left to be determined by the Rules to be framed for the said purpose. Such Rules came in t he year 1982 in the form of the Assam Secondary Education (Provincialised) Servi ce Rules, 1982 (hereinafter referred to as ’the 1982 Rules’). Rule 3 prescribes that the service which was defined by Rule 2(k) to mean the Assam Secondary Edu cation (Provincialised) Service, shall consist of the cadres specified under Rul e 3. For the purposes of the present cases it will be sufficient to notice the p rovisions contained in Rule 3(1)(e) which are to the following effect : 3.(1)(e) Class-III (Non-Gazetted). (i) Graduate teaches of Higher Secondary and Multipurpose schools, High Scho ols herein after called Graduate teachers. (ii) Graduate teacher of High Madrassa. (iii) Junior teachers of Higher Secondary and Multipurpose schools and High Sc hools herein after called as Junior teachers. (iv) Junior teachers of High Madrassa. . The provisions of the aforesaid Rule 3(1)(e), therefore, make it clear that Classical Teachers of any kind including graduate Classical Teachers were not specifically encadred. 7. Rule 9(iv) of the 1982 Rules specify that post Graduate Teachers with ten years teaching experience and Graduate Teachers with twelve years teac hing experience are eligible for consideration for promotion to the post of Vic e- Principal whereas, Rule 9(v) stipulated ten years teaching experience as a gr aduate teacher for being eligible for consideration for promotion to the post of Assistant Headmaster. 8. Rule 13 laid down principles by which the inter se seniority of existing employees in each cadre is required to be determined. Rule 13, therefor e, is extracted below:- 13. Seniority.-(1) The interse-seniority of the existing employees in the respe ctive cadre shall be determined in relation to the :-- (a) Date of continuous appointment. (b) Date of Joining. (c) Date of birth. (2) In case of any dispute, the Director shall refer the matter in details to t he State Government whose decision shall be final. (3) In case of the members entering into the service on and after the appointed date their interse-seniority shall be determined on the basis of the merit list furnished by the Board or the Commission, as the case may be. 9. As Classical Teachers were being excluded from consideration for promotion under the Provincialisation Rules of 1982, representations were made by the teachers of that category, whereafter, by communication dated 3.8.90 addr essed by the Deputy Secretary to the Govt. of Assam, Education Department, the D irector of Secondary Education, Assam was informed that Classical Teachers of H indi, Sanskrit, Arabic, Persian, Assamese, Boro etc. having degree qualification may be included in the cadre of general teachers for giving benefit of promotio n to higher posts in the same line of general teachers . It is the case of the a ppellants and the writ petitioners that thereafter promotions were given to many incumbents who were working as Classical Teacher. As the said document dated 3. 8.1990 would be relevant for the discussions that will follow, the said is being extracted hereinbelow :- Government of Assam Education (Personnel) Department ******* No. EPG.890/87/29 Dated Dispur, the 3rd August, 1990 To : The Director of Secondary Education, Assam, Kahilipara, Guwahati-19 Subject : Inclusion of the classical teacher of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having degree qualification in the cadre of General Teachers for promotion to higher posts. Reference : Your letter No. GB-EST/ASSO/3/86/216, dated 26.6.90. Sir, With reference to your letter on the subject cited above, I am directed to say that the classical teachers of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having degree qualification may be included in the cadre of general te achers for giving benefit of promotion to higher posts in the same line of gener al teachers. Yours faithfully (R.A. Hazarika) Deputy Secretary to the Govt. of Assam Education Department. 10. The Provincialisation Rules of 1982 were amended in the year 19 91. Of the several amendments made it will be necessary for the Court to notice the amendment of Rule 3 of the 1982 Rules by which the Graduate Teachers of High er Secondary Schools and Multi Purpose Schools or High Schools and senior Classi cal Teachers or senior Hindi Teachers having Bachelor’s degree as general qualif ication were included in Grade IV of the Service. Consequently, in Schedule-I to the Rules the following four categories of employees were included in Grade IV of the Service having the same scale of pay: (i) Graduate Teacher of Higher Secondary and Multipurpose School. (ii) Graduate Teacher of High School. (iii) Graduate Teacher of High Madrassa. (iv) Senior Classical Teachers or Senior Hindi Teachers (only the categories sho wn in Sl. 4 in Schedule-II). 11. The senior Classical Teachers or senior Hindi Teachers so encadr ed in Grade IV were specified by Rule 3, as amended, to be only of the category shown at serial No. 4 of Schedule II details of which are extracted below: Sl. No. Name of the post Cadre Qualific ation 1. & & & & & & & &. & & &. & & & & & &. 2. & & & & & & & & & & & &. & & & & & & & 3. & & & & & & & & &. & & & & & & & & & &.. 4. Sr. Classical Teacher/Senior Grade-IV Graduate with Hindi/ Hindi Teacher Sanskrit/ Arabic/Persian as one of the su bject. 12. Similarly, senior Classical Teachers or senior Hindi Teachers sh own at serial No.5 of Schedule II, junior Classical Teachers or junior Hindi Tea chers shown at serial No.8 of Schedule II and junior Classical Teachers or junio r Hindi Teachers shown at serial No. 10 of Schedule II were included in Grade V , VI and VII of the Service respectively. 13. Different pay scales had been provided to the incumbents include d in Grade IV of the Service by Schedule I to the 1991 Amendment Rules as well a s to those included in Grade V, VI and VII respectively. Schedule II to the 1991 Amendment Rules prescribed different qualifications for the incumbents holding different posts of Classical Teachers included in Grade IV, V, VI and VIII of th e Service. Another significant fact which must be taken note of is that the 1991 Amendment Rules did not cause any alteration in Rule 13 of the 1982 Rules deali ng with fixation/ determination of seniority. 14. Under Rule 9, as amended by the 1991 Rules, promotional avenues to Grade II and II of the Service have been provided for the incumbents in Grade IV subject to their fulfilling the qualifying service mentioned in Rule 9. In o ther words, Classical Teachers with graduate qualification had been made eligibl e for promotion to the Grade II as well as Grade III of the Service as constitut ed by Rule 9, as amended, brought into force by the 1991 amendment. 15. The Assam Secondary Education (Provincialised) Service Rules, 20 03 came into force from 11.8.2003 by repealing the Rules in force i.e. the 1982 Rules, as amended from time to time. Rule 2(n) of the 2003 Rules defines graduat e teacher in the following terms:- 2(n). Graduate Teacher means the category of Assistant Teacher in High/ Highe r Secondary/ Higher Secondary and Multipurpose/ High Madrassa Schools for whose appointment the minimum qualification prescribed is a Graduate degree in Arts, S cience or Commerce including Demonstrators in Higher Secondary/ Higher Secondary & Multipurpose School. 16. Rule 3(1) sets out the different classes and categories constitu ting the Service. By Rule 3(1)(b)(ii), Hindi Teachers having Bachelor’s degree and Classical Teachers (Sanskrit, Arabic, Peresian, Assamese language Teachers) have been included along with Graduate Teachers in Class II(Junior) of the Serv ice. Rule 14 deals with recruitment to the post of Vice-Principal/ Headmaster/ A ssistant Headmaster etc. and provides that the post of Vice-Principal shall be filled up by promotion, inter alia, from Graduate Teachers having twelve years’ teaching experience. Rule 14(2) provides for promotion to the post of Headmaster whereas Rule 14(3) provides for promotion to the post of Assistant Headmaster. Promotion to both the posts of Headmaster and Assistant Headmaster is required t o be made on the basis of seniority determined in accordance with Rule 24(2) of the Rules. Rule 14(4) prescribes the conditions of eligibility for promotion to the post of Headmaster/ Assistant Headmaster by requiring a candidate to be a gr aduate in Arts, Science or Commerce with B.T. or B.Ed. degree and further requir ing such a candidate to possess at least ten years of teaching experience as a g raduate teacher in so far as the post of Headmaster is concerned and seven years of such experience in so far as the post of Assistant Headmaster is concerned. Rule 24(2)(i) stipulates that the seniority for promotion to the post of Headmas ter/ Assistant Headmaster shall be determined from the date of joining of the in cumbent as a graduate teacher in the school. Rule 24(2)(ii) contemplates that Cl assical Teachers of Hindi, Sanskrit, Arabic, Persian, Arabic, Boro etc. having a degree qualification are to be included in the cadre of Graduate Teachers for g iving the benefit of promotion to the higher post in the same line of general te achers. However, their seniority is to be counted with effect from 3.8.1990 i.e. the date of the Government Letter referred to earlier. It is the validity of th e aforesaid provisions of Rule 24(2)(ii) of the 2003 Rules that has come under c hallenge in the present cases. 17. Sri D.K. Mishra, learned senior counsel for the petitioners in W .P(C). No. 7125/2003 has submitted that in all the schools covered by the Provin cialisation Act of 1977 apart from graduate teachers, posts of Language Teachers and Classical Teachers were in existence. This has been sought to be demonstrat ed by Sri Mishra by placing before the Court the provisions contained in the Ass am Secondary Education (Middle English & High Schools) (Provincialisation) Rules , 1979 framed in exercise of powers under Section 7 of the Provincialisation Act of 1977. Sri Mishra has relied on Rule 3 of the aforesaid Rules of 1979 to show that existence of one post of graduate Classical Teacher and one Hindi Teacher having qualification in Hindi equivalent to Bachelor’s degree were essential con ditions of eligibility for provincialisation under the 1977 Act. Classical Teach ers, therefore, were existing employees within the meaning of the said definitio n contained in Section 2(vi) of the 1977 Act. Under Section 3(1) of the said Act , by the deeming provision contained therein, such employees became Government s ervants from the date of their appointments subject to encadrement in the approp riate cadre to be made by the Rules framed in exercise of powers under Section 3 (3) of the Act. It is the further contention of Sri Mishra that the encadrement effected under the 1982 Rules though did not specifically mention Classical Teac hers, as such Classical Teachers are also graduates, the expression ’Graduate Te acher’ appearing in Rule 3 (1)(e) included all graduate Classical Teachers also. Sri Mishra also referred to the provisions of the ROP Rules of 1964, 1975, 1983 (as amended), the ROP Rules of 1990 and 1994 to show that under each of the afor esaid ROP Rules the pay scale of Graduate Teachers of High Schools and Hindi/ Cl assical Teachers (Senior Grade) is one and the same. 18. Sri Mishra has further contended that both Graduate Teachers and graduate Classical Teachers were existing employees of the schools provincialis ed under the 1977 Act; both had the same qualifications and were in the same sca le of pay. In such circumstances, according to the learned counsel, there was a n implied encadrement of Classical Teachers in the cadre of Graduate Teachers as made by the 1982 Rules. Under Rule 13 of the 1982 Rules seniority was to be det ermined from the date of continuous appointment/ date of joining, Rule 24(2)(ii) , therefore, could not have conferred the benefit of seniority to Classical Teac hers w.e.f 3.8.90. Vested rights of the Graduate Classical Teachers have been ar bitrarily sought to be taken away by the 2003 Rules, contends the learned counse l. 19. In so far as the letter dated 3.8.1990 is concerned, Shri Mishra has submitted that the same cannot be construed to be an authority for the enca drement of Classical Teachers in as much as under the Provincialisation Act of 1 977, encadrement is to be made by Rules framed. The learned counsel has pointed out that because the Classical Teachers were already in the cadre of Graduate T eachers the promotional avenues spelt out by the letter dated 3.8.1990 could hav e been provided. 20. It is the further submission of Shri Mishra that the encadrement of Classical Teachers along with Graduate Treachers in Grade-IV of the service by the 1991 Rules had merely made it explicit what was all along implicit and fu rther that Rule 13 of the 1982 Rules stood unaltered by the 1991 amendment so as to justify adoption of any other criteria for determination of seniority except length of service. Shri Mishra has also referred to certain promotion orders of Classical Teachers enclosed to the reply affidavit filed in the writ petition ( W.P.(C) No.7125/03) to contend that such promotions had been given to Classical Teachers without computation of qualifying service on the basis of the date of t he Government letter i.e. 3.8.1990 and some classical Teachers had been promoted even though they had not completed the requisite 12/7 years of service computed with effect from 3.3.1990. All the said facts, according to the learned counsel , squarely indicate that Classical Teachers were very much a part of the cadre o f Graduate Teachers and it is the wrongful denial of promotion which was correct ed by the Government letter dated 3.8.1990 and the amendment of the 1982 Rules m ade in the year 1991. However, the said position was sought to be unsettled by t wo other Government letters dated 4.5.2001 and 15.6.2002. Consequently, the same were challenged in proceedings before this Court registered and numbered as W.P .(C) No.462 of 2002 and 5026 of 2002. Both the aforesaid writ petitions were wit hdrawn once the Rules of 2003 were enacted and brought into force with effect fr om 12.8.2003. 21. As the aforesaid letters/communications dated 4.5.2001 and 15.6. 2002 would have relevance to the discussions that will follow, the contents of t he said letters/ communications may be noticed hereinbelow :- GOVERNMENT OF ASSAM EDUCATION (SECONDARY) DEPARTMENT Memo No. B(3)S-244/99/42 Dated Dispur, the 4th May/2001 From : Shri S. Brahma, Deputy Secretary to the Govt. of Assam, Education, Department. To : The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. Sub : Seniority in service- regarding. Sir, I am directed to refer to Govt. letter No. LP-890/87/29, dated 3-8-1990 (copy enclosed) and your endorsement dated 2-3-2001 vide U/O No. CB-EST/Misc/2/2 001 in this Department file No. B(3)S-244/99 and convey the approval in respect of the seniority given to the classical teachers of Hindi, Sanskrit, Persian, As samese, Bodo etc. having degree qualification in the cadre of General Teachers f rom the date of issue of Govt. letter under reference i.e. with effect of 3-8-19 90 for having benefit of promotion to the Higher posts. Yours faithfully, Sd/- Deputy Secretary to the Govt. of Assam, Education Department. . GOVERNMENT OF ASSAM EDUCATION (ELEMENTARY & SECONDARY) DEPARTMENT No. B(3)S 244/99/93 Dated Dispur, the 15th June, 2002 OFFICE MEMORANDUM For the purpose of removing the stagnation in giving promotional benefit of classical teachers to the Higher post Government vide letter No. EPG 890/87/ 29 dt. 3.8.90 had decided to include the Classical Teacher of Hindi, Sanskrit, P ersian, Assamese, Bodo etc. having degree qualification to the cadre of General Teacher for promotion in the same line of General Teachers. Government has now h ereby decided to continue the earlier policy decision adopted vide letter No. EP G 890/87/29 dt. 3.8.90 and the inter-se-seniority of those Classical Teacher hav ing degree qualification with that of the General Teacher will be fixed with eff ect from 3.8.90 i.e. the date of issue of Government decision. This supersedes al the Government earlier letters/ circulars issued in t his regard. Sd/- P.C. Sharma, Principal Secretary to the Govt. of Assam, Education Department. . 22. Shri Mishra has summed up his arguments by contending that Class ical Teachers and Graduate Teachers being at par having the same pay, qualificat ions and duties, patent discrimination will arise if the provisions of Rule 24(2 )(ii) is allowed to remain in the statute book. Consequently, Rule 24(2)(ii), ac cording to the learned counsel is constitutionally invalid having brought about a hostile discrimination against Classical Teachers without there being any reas onable basis for the classification sought to be made. 23. Shri Mishra has also brought to the notice of the Court the stat ements made on behalf of the petitioner in the reply affidavit dated 27.4.2006 ( wrongly shown to be filed in WP(C) No.7125/2003). In this regard, the learned co unsel has submitted that the aforesaid statements adequately explain the somewha t inconsistent position indicated in the writ petition filed particularly in par agraphs 4, 5 and 6. Shri Mishra has submitted that the statements made in the af oresaid para-4, 5 and 6 to the effect that Classical Teachers were not encadred by the 1982 Rules were so made on the basis of the information furnished to the petitioner and in any event in para-5 of the reply affidavit the position has be en clarified to mean that what has been urged before the Court on behalf of the Classical Teachers is that they along with Graduate Teachers were encadred conj ointly and compositely as Graduate Teachers . 24. Shri N. Dutta, learned counsel for the Respondents Graduate Teac hers in WP(C) No. 7125/2003 has countered the arguments advanced on behalf of th e petitioners contending that all employees including Graduate and Classical Tea chers who became Government servants by virtue of the provincialisation Act of 1 977 were not encadred under the 1982 Rules. In this regard, Shri Dutta has been emphatic in his submissions that encadrement can only be made by Rules framed in exercise of powers under Section 3(3) of the Provincialisation Act of 1977. Shr i Dutta has argued that Classical Teachers was a heterogeneous group consisting of Graduates, persons with Degrees or Diploma equivalent to Graduation as well a s persons who are Matriculates. The 1982 Rules did not encadre any category of C lassical Teachers and it is only Graduate Teachers who were encadred in Class-II (Non-Gazetted) of the service. Such encadrement, according to Shri Dutta, took place by virtue of the 1991 Rules whereby only Graduate Classical Teachers were encadred in Grade-IV of the Service along with Graduate Teachers of Higher Secon dary and MP Schools or High Schools. Classical Teachers of other denominations w ere also encadred but in other grades of service i.e. Grade-V, VI and VII. Shri Dutta has submitted that the petitioners who are Graduate Classical Teachers and encadred in Grade-IV of the service have gained an advantage over other Classic al Teachers who may have had