WP(C) 764/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (ORAL) Heard Mr. B. Sinha, learned counsel for the petitioner as well as Mr. R .P. Sarmah, learned Sr. counsel assisted by Mr. S.M.T. Chistie, learned counsel representing the Respondent No.5. I have also heard Mr. S.K. Das, learned Stand ing Counsel, Education Department. 2. The petitioner, who is presently serving as a Subject Teacher (Post-Gra duate Teacher) in the school called Agomoni Higher Secondary School is aggrieved by the Annexure-9 order dated 9.2.2007 passed by the Director of Secondary Educ ation, Assam entrusting the charge of Principal of the school to the Respondent No.5. He is also aggrieved by the Annexure-9-A order dated 9.2.2007 determining the seniority between the petitioner and the Respondent No.5 holding that the Re spondent No.5 is senior to the petitioner. The petitioner was first appointed in the school on 25.9.1977 as per the resolution of the Managing Committee of th e school. At that point of time, the school was not provincialized. The school was provincialized with effect from 1.3.1978. On the other hand, the Responden t No.5 was appointed as Demonstrator in the school with effect from 30.4.1977. This has been stated in the counter affidavit filed by the Respondent No.5. The school having been provincialized with effect from 1.3.1978, his service was al so provincialized. The authority has determined the seniority taking their serv ice with effect from 1.3.1978. Since on that basis, the seniority is not determi nable, the authority has decided to resolve the seniority dispute on the basis of the date of birth. As per the impugned order dated 9.2.2007 (Annexure-9A to the writ petition) the date of birth of the petitioner being 26.1.1953 and that of the Respondent No.5 16.2.1952, the Respondent No.5 would be senior to the pet itioner. 3. Although it is the stand of the respondents that the Respondent No.5 was appointed and/or his service was provincialized w.e.f. 1.3.1978, but the stand of the petitioner is otherwise. Upon a reference to the Annexure-7 letter date d 28.7.1979 addressed to the Principal of the school by the Inspector of Schools , it is the plea of the petitioner that the Respondent No.5 was appointed as De monstrator initially in the Chemistry Department, in which he was not specialize d as Demonstrator. The Respondent No.5 was eventually appointed as Demonstrator in Biology Department which was his subject of specialization. By the said let ter, the Principal of the school was intimated that the Respondent No.5 would be required to refund excess amount drawn by him as Under qualified Demonstrator in the Chemistry Department. According to the petitioner, the Respondent No.5 w as eventually appointed as qualified Demonstrator in the Biology Department w.e. f. 1.9.1979. Thus, the stand of the petitioner is that his seniority would be c ounted w.e.f. 1.9.1979 and not from 1.3.1978 and on that count, the petitioner would rank senior to the Respondent No.5. 4. In the counter affidavit filed by the Respondent No.5, the plea regardin g refund of the excess salary drawn by him, has been admitted. However, he has d enied that he was an Under qualified Demonstrator. According to him, he was re gularly appointed as Demonstrator w.e.f. 1.3.1978. He has referred to the provis ions of the Assam Secondary (Provincialization) Service Rules, 2003 so as to cla im seniority over the petitioner and eventually, the Principal-in-charge-ship of the school. 5. The Director of Secondary Education, Assam, who has passed the impugned Annexure-9 order dated 9.2.2007, has filed two affidavits - one dated 19.3.2007 and another dated 3.8.2007. In the first affidavit filed on 19.3.2007, the stand of the Director is that the school having been provincialized w.e.f. 1.3.1978, the service of the incumbent would be counted from the said date. The Director has referred to Rule 2(n) of the Assam Secondary (Provincialization) Service R ules, 2003 so as to contend that the Respondent No.5 is senior to the petitione r. 6. In the second affidavit filed, it has been stated that the Respondent No .5 was appointed as Demonstrator in Chemistry Department vide order dated 22.2.1 978 and thereafter, the Respondent No.5 was appointed as Demonstrator in Botany w.e.f. 1.9.1979. Referring to this particular statement of the Respondent No.2 i .e. the Director of Secondary Education, Assam in the counter affidavit and also in the Annexure-7 letter dated 28.7.1979, it is the stand of the petitioner tha t since the Respondent No.5 was regularly appointed as Under qualified Demonstra tor w.e.f. 1.9.1979 and he was an Under qualified Demonstrator in the departmen t of Chemistry, his seniority would count from 1.9.1979. In other words, it is the case of the petitioner that the earlier period of service of the Responden t No.5 as Under qualified Demonstrator was fortuitous. 7. From the materials on record, it appears that the impugned orders have b een passed on the basis of the provisions of the 2003 Rules. On the other hand, both the petitioner and the Respondent No.5 were appointed wayback in 1977-1978 , when the same Assam Secondary Education (Provincialization) Rules, 1982 was ho lding the field. The 2003 Service Rules is prospective in application and cannot operate retrospectively. Thus, it is the 1982 Rules, which will govern the case of the petitioner vis-à-vis the Respondent No.5. It is in this context, Mr. Sin ha, learned counsel for the petitioner submits that the post of Demonstrator wa s an ex cadre post under the 1982 Rules. It is only after the promulgation of th e 2003 Rules, the post has been en-cadred. Mr. Sarmah, learned counsel for the R espondent No.5 submits that even if the post of Demonstrator was an ex cadre po st and was en cadred as per the provisions of the Rules of 2003, the incumbents will be entitled to seniority with retrospective effect. 8. I have considered the submissions advanced by the learned counsel for th e rival parties. The writ petition is disposed of directing the Government of A ssam in the Education Department to resolve the seniority dispute between the pe titioner and the Respondent No.5 consistently with the observations made above. It is made clear that while determining the seniority between the petitioner a nd the Respondent No.5, the 2003 Service Rules would have no application as the same does not have the retrospective application, as has been held by this Court in a number of decisions. Thus, the seniority of the petitioner and the Respon dent No.5 shall be governed by the 1982 Rules. The entire exercise shall be carr ied out as expeditiously as possible, preferably within 30.11.2009 after hearing both the parties as well as the Managing Committee of the school. The authorit y shall pass a speaking order highlighting all the aspects of the matter. Till t hen, the status quo as on today shall be maintained.