WP(C) 3172/2011 BEFORE HON’BLE MR JUSTICEI.A. ANSARI JUDGMENT & ORDER With the help of the present writ petition, made under Article 226 of th e Constitution of India, the petitioner, who is an Assistant teacher in Ganakpuk huri High School, in the district of Barpeta, has put to challenge the Order, da ted 05.06.2011, passed by the Government of Assam, Education (Secondary) Departm ent, whereby respondent No. 4 herein (in short, ’the private respondent’) has be en allowed to hold the charge of the office of the Headmaster of the said school . 2. In order to correctly appreciate the controversy involved in the present writ petition, I deem it necessary to summarize the background facts enumerated in the writ petition. These facts may be set out, in brief, as under: (i) Ganakpukhuri High School was provincialised, with effect from 01.02.1985 , by order, dated 26.01.1985. The date of birth of the petitioner is 01.07.1956, while the date of birth of the private respondent is 01.09.53. Thus, the privat e respondent would retire before the present petitioner. The date of appointment of the writ petitioner, as a graduate teacher, by the Managing Committee of the School was 01.05.78. The date of appointment of the private respondent, as clas sical teacher, by the Managing Committee of the school, was 04.05.77. Though app ointed as a classical teacher, the private respondent was, at the time of his ap pointment, as a classical teacher, a graduate. The private respondent was, thus, appointed by the Managing Committee of the said school earlier than the present petitioner. What also needs to be noted is that classical teacher has not been defined in any statutory provisions, but what the expression ’classical teacher’ means, in the light of the Full Bench decision, in Rukmini Bora and another Vs . State of Assam and others, reported in 2009(3) GLT 834, is that teacher, who h ad Hindi, Arabic, Persian, Assamese, Bodo, etc., as one of the subjects in the s chool and teach one of these subjects on being appointed therefor. (ii) On provincialisation of the school, with effect from 01.02.198 5, both, the petitioner as well as the private respondent, became regular teache rs of the said school, the petitioner being treated as a graduate teacher, while the private respondent remained being treated still as a classical teacher. Bef ore provincialisation, while the petitioner had been receiving scale of pay of R s.620 - 1315 per month, the private respondent, being classical teacher, used to receive the scale of pay of Rs.580 - 1065 per month. (iii) The headmaster of the school retired on 28.02.2004 and, on the f ollowing day, i.e., on 29.02.2004, the petitioner was made in-Charge headmaster. On coming into force of the Assam Secondary Education (Provincialised) Service Rules, 2003, the petitioner was, on 02.04.2004, removed from the post of in-Char ge Headmaster of the said school and he was substituted, as in-Charge Headmaste r of the said school, by the private respondent. (iv) Assam Service (Revision of Pay) Rules, 1983, was notified by gaz ette notification, dated 22.07.83. Under the notification, dated 07.06.83, class ical teachers had been granted pay scale of Rs.620-1315/-. By notification, date d 15.05.86, classical teachers were classified into grades. The pay scale of Sen ior Grade was Rs.620-1315/-, whereas the pay scale of Junior Grade was Rs.625/-t o Rs.920/-. (v) Pursuant to the advertisement, dated 02.11.2010, issued by the Director of Secondary Education, Assam, inviting applications for appointment to the post of headmaster, the petitioner and also the private respondent, being q ualified, applied. The interview was held on 29.01.2011 and both of them partici pated in the interview for appointment as regular headmaster. (vi) The petitioner alleges that respondent No.2, namely, Director of Seconda ry Education, Assam, without considering the petitioner’s case, passed an order, on 14.12.2010, relieving the petitioner from the post of in-Charge headmaster w ithout even serving a notice on the petitioner and without even affording an opp ortunity of being heard to the writ petitioner. By the said order, dated 14.12.2 010, respondent No.4 (i.e., the private respondent) has been, once again, made, points out the petitioner, in-Charge of the office of the Headmaster of the said school under the provisions of FR 49(c) temporarily. In the order, dated 14.12. 2010, private respondent (i.e., respondent No.4) has been shown as senior-most A ssistant Teacher of the said school. (vii) Aggrieved by the order, dated 14.12.2010, the petitioner, who was, at th e relevant point of time, holding the charge of the office of the Headmaster of the said school, had come to this Court with the help of a writ petition, namely , WP(C) No.6841/2010, which was disposed of, on 12.05.2011, setting aside and qu ashing the order, dated 14.12.2010, and remanding back the matter to the Commiss ioner and Secretary to the Govt. of Assam, Education (Secondary) Department to t ake a decision afresh after hearing the parties concerned. Pursuant to the High Court’s order, dated 12.05.2011, hearing took place, on 02.06.2011, in the offic e of the respondent No.1, and, on completion of hearing, respondent No.1 has pas sed the impugned order, dated 06.06.2011, holding the private respondent senior to the petitioner and asking the petitioner to hand over charge, as in-Charge He admaster, to the private respondent No.4. It is the order, dated 06.06.2011, whi ch is under challenge in the present writ petition. 3. I have heard Mr. A.S. Choudhury, learned Senior counsel, for the petitio ner, and Mr. A. Deka, learned Standing Counsel, Education Department. I have als o heard Mr. P.P. Baruah, learned counsel, for the respondent No.4. 4. Appearing on behalf of the petitioner, Mr. Choudhury, learned Senior cou nsel, submits that the finding, as regards seniority, is perverse inasmuch as th e petitioner had received his graduate scale of pay with effect from 01.02.85, w hen the school came to be provincialised; whereas the private respondent receive d his graduate scale of pay in the year 1992. This apart, submits Mr. Choudhury, the petitioner is MA B.Ed; whereas the private respondent is BA BT and that und er the Assam Secondary Education (Provincialised) Service Rules, 2003, classical teachers have been encadred as graduate teacher. This encadrement has, however, taken place, according to Mr. Choudhury, by virtue of Assam Secondary Educatio n (Provincialised) Service (Amendment) Rules, 2010, (in short, ’the 2010 Rules’) , which was notified on 26.07.2010, Sub-Rule (2) of Rule (1) of the 2010 Rules h aving made it clear that the 2010 Rules shall come into force from the date of i ts publication in the official gazette. Since the publication in the official ga zette of the 2010 Rules was 26.07.2010, the 2010 Rules shall be treated, contend s Mr. Choudhury, as prospective and not retrospective in nature. As this encadre ment, according to Mr. Choudhury, is prospective in nature, it is not possible t o treat the private respondent, who was a classical teacher, until his encadreme nt as graduate teacher, senior to the petitioner. 5. Resisting the writ petition, it has been submitted, on behalf of the re spondents, that Rule 24(2)(ii) had been struck down as ultra vires by the Full B ench in Rukmini Bora and another Vs. State of Assam and others, reported in 2009 (3) GLT 834, on the ground that Clause (ii) was discriminatory, because clause ( ii) had provided that seniority, regarding Classical Teacher, shall be counted a s per Govt. letter No. B(3)S-244/99/42, dated 3-8-90, wherein it had been stated that the Classical Teachers of Hindi, Sanskrit, Arabic, Persian, Assamese, Bodo etc., having degree qualification, may be included in the cadre of graduate tea cher for giving benefit of promotion to the higher post in the same line of gene ral teacher i.e. from the date of the aforesaid Govt. letter dated 03.08.1990. 6. It has also been pointed out, on behalf of the respondents, that the Ful l Bench has mentioned, in Rukmini Bora (supra), that in terms of the Assam Secon dary Education (Provincialised) Service Rules, 1982, as amended on 30.12.1991 (h ereinafter referred to as the ’1991 Rules’), graduate classical teachers were en cadred, for the first time, in grade IV of the service and it is grade IV of the service, wherein graduate teachers were also included and, hence, though might have been distinct and separate, a classical teachers became equivalent to, and at par with, a graduate teacher on having been included, as already indicated he reinbefore, within Grade-IV. Thus, both classes of teachers, namely, graduate te achers as well as classical teachers, fell in the same grade and this was made c lear by the provisions contained in Rule 9 of the 1991 Rules inasmuch as Rule 9 made provisions for promotion to Grade-II and Grade-III of the service from the serving members of Grade-IV of the service subject to their having requisite per iod of qualifying service. The Full Bench, in Rukmini Bora (supra), concluded, p oints out the respondents, that graduate classical teachers became eligible for promotion to higher grades in the service in the same manner as general graduate teachers. The Full Bench has also pointed out, contend the respondents, that i n so far as the period of qualifying service stipulated by Rule 9 is concerned, the seniority of a member of the service is primarily required to be determined from of the date of continuous appointment/date of joining and if the said dates are same, then, by reference to the date of birth. Consequently, according to t he Full Bench, in Rukmini Bora (supra), by virtue of the provisions of 1982 Rule s, general graduate teachers were given seniority with effect from the date of t heir initial appointment and once graduate classical teachers were encadred in t he service by the 1991 Rules, no different treatment could have been given to su ch teachers, because Rule 13 continued to hold the field and, hence, graduate cl assical teachers, too, became entitled to seniority from the date of their init ial appointment. 7. Repelling the submissions made on behalf of the respondents, Mr. Choudhu ry has pointed out that on the decision having been rendered by the Full Bench, Rukmini Bora (supra), on 25th June, 2009, there was a void created inasmuch as C lause-II of Rule 24 of the 2003 Rules had been struck down by the Full Bench and this void was filled up by the notification, dated 26th July, 2010, issued by C ommissioner and Secretary to the Govt. of Assam, Education (Secondary) Departmen t, Govt. of Assam. Mr. Choudhury submits that before this encadrement, which was notified on 26.07.2010, classical teachers could not have been treated at par with the graduate teachers and, hence, the private respondent could not have bee n treated, before the date of the notification, dated 26th July, 2010, at par wi th, or equivalent to, a graduate teacher, such as, the petitioner, and since the private respondent could not have been treated at par with, or equivalent to, a graduate teacher, such as, the petitioner, the consequence was, according to Mr . Choudhury, that the private respondent became at par with the present petition er, who is a graduate teacher, on 01.02.1985 and when the private respondent bec ame a graduate teacher, on 01.02.1985, it was impossible to treat him senior to the present petitioner inasmuch as the present petitioner became a graduate teac her as far back as on 01.05.1978. 8. On a query made by this Court as to whether the issuance of the notifica tion, dated 26th July, 2010, was at all necessary by the Government, when the Fu ll Bench, Rukmini Bora (supra), had, while striking down clause (ii), clearly he ld that graduate classical teachers had become equivalent to, and at par with, general graduate teachers by the 1991 Rules and their seniority had to be counte d from their initial date of appointment, Mr. Choudhury had no answer, far less convincing answer, to offer. 9. Since the whole writ petition revolves around correct interpretation of the decision, rendered in Rukmini Bora (supra), it is appropriate to take note o f the facts, which had been taken note of in Rukmini Bora (supra), by the Full B ench. In Rukmini Bora (supra), the writ petitioners were classical teachers, who possessed graduate degree. Classical teachers, as pointed out in Rukmini Bora ( supra), are, if I may reiterate, those, who had Hindi, Sanskrit, Arabic, Persian , Assamese and Boro as one of the subjects, while acquiring the degree qualifica tion. They taught the aforesaid languages in the schools in which they are/were appointed. 10. It is time, now, to point out that with the object of providing provinci alisation of secondary education covered by the deficit scheme prevailing in the State of Assam, the Assam Secondary Education (Provincialisation) Act, 1977 (he reinafter as ’the Provincialisation Act, 1977’) was enacted, which came into for ce w. e. f. 01.10.1977. Section 2 (v) and (vi), which define the expression ’em ployee’ and ’existing employee’, being relevant, are reproduced below: (v) ’employee’ means a person in the employment of a school working against a r egularly sanctioned post and whose appointment has been approved by the School a uthority wherever such approval was necessary; (vi) \existing employee\ means an employee who is, on the appointed day, in the regular pay roll, employee agains t regular sanction and whose appointment has been approved by the school authori ty. (vi) ’existing employee’ means an employee who is on the appointed day, in the r egular pay roll, employee against regular sanction and whose appointment has bee n approved by the school authority.\ 11. Section 3 of the Act provides that on and from an appointed date, that i s, the date on which the Act came into force, all employees of all secondary sc hools, 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) provide s that services of all employees shall be encadred, in appropriate cadres, in ac cordance with the Rules framed by the State Government. 12. The Full Bench, in Rukmini Bora (supra), as already indicated above, poi nted out that at the time, when the Provincialisation Act, 1977, was brought int o force, there were two classes of teachers, namely, graduate teachers and class ical teachers, but, by virtue of Section 3(1) of the Provincialsation Act, 1977, the services of both categories of teachers were provincialised and they became State Government employees with effect from the respective 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 to force, in the year 1982, in the form of the Assam Secondary Education (Provin cialised) Service Rules, 1982 (hereinafter as ’the 1982 Rules’). Rule 3 of the 1982 Rules provides that the word, ’service’, as defined in Rule 2(k) of the 19 82 Rules, shall consist of the cadres specified under Rule 3. Rule 3(1)(e), bei ng relevant, is extracted below: \3. (1) (e) Class-III (Non-Gazetted ). (i) Graduate teachers of Higher Secondary and Multipurpose schools, High Schools hereinafter called Graduate teachers. (i i) Graduate teacher of High Madrassa. (iii) Junior teachers of Higher Secondary and Multipurpose schools and High Schools herein after called as Junior teachers . (iv) Junior teachers of High Madrassa.\ 13. The Full Bench pointed out, in Rukmini Bora (supra), that the provisions of Rule 3(1)(e) make it clear that classical teachers of any kind, including gr aduate teachers, were not specifically encadered. The Full Bench has also point ed out that as the classical teachers were being excluded from consideration for promotion under the 1982 Rules, representations were made by the classical teac hers and, thereafter, by communication, dated 03.08.1990, addressed by the Deput y Secretary to the Government of Assam, Education Department, the Director of Se condary Education, was informed that classical teachers of Hindi, Sanskrit, Arab ic, Persian, Assamese, Bodo etc., having degree qualification, may be included i n the cadre of general teacher for giving promotion to higher posts in the same line as in the case of general teachers and it was thereafter that promotions we re given to many incumbents, who were working as classical teachers. 14. The Full Bench also pointed out that the 1982 Rules were amended in the year 1991 and, as per Rule 3 of the amended Rule graduate teachers of Higher Sec ondary and Multipurpose Schools or High Schools, on the one hand, and senior cla ssical teachers and senior Hindi teachers having Bachelor degree, on the other, were encadered in Grade-IV of the service and, in this manner, 4 (four) categori es of employees were included in Grade-IV of the service having the same scale o f pay. The Full Bench also pointed out that by virtue of Rule 9 of the amended Rule, classical teachers, with graduate degree, had become eligible for promotio n to Grade-III as well as Grade-II of the service. 15. It may, now, be noted that the Assam Secondary Education (Provincialised ) Service Rules, 2003 (hereinafter referred to as the ’2003 Rules’) came into fo rce, on 11.08.2003, by repealing the earlier 1982 Rules. Rule 2(n) of the 2003 Rules defines the word, ’graduate teacher’, to mean the category of Assistant Te acher in High/ Higher Secondary/ Higher Secondary and Multipurpose/High Madrassa Schools for whose appointment the minimum qualification prescribed is a Graduat e degree in Arts, Science or Commerce including Demonstrators in Higher Secondar y/Higher Secondary and Multipurpose School. The observations made by the Full Be nch, in Rukmini Bora (supra), at paragraph 30,32,33,34 and 35, being relevant, a re quoted below: ( 30 ) A pointed query was made by the Court that assuming that Graduate Classi cal teachers were encadred for the first time in the year 1991, why the Court should not understand them to be entitled to seniority from the date of their i nitial appointment by virtue of the provisions contained in Section 13 of the Pr ovincialisation Act of 1977, particularly when seniority to Graduate teachers wi th effect from the date of their initial appointment had been given following th eir encadrement under the 1982 Rules. In reply, Sri Dutta has submitted that Sec tion 3 (1) of the 1977 Act should be understood to have conferred the status of Government servant on all employees of the provincialised schools from the date of encadrement and not from the date of initial appointment. In this regard, Sri Dutta has submitted that such an interpretation should be made notwithstanding the expressed language contained in Section 3 (1) of the Act as any other view w ould lead to incongruous and undesirable results. *** *** *** ( 32 ) The analysis of the law relevant to the present adjudication being over, the Court must now proceed to examine the rival contentions of the parties. The issue raised on behalf of the appellants that Graduate Classical teachers wer e included in the cadre of general Graduate teachers since the very inception is capable of being answered by the provisions of the Provincialisation Act of 197 7 under which encadrement is required to be made by specific Rules framed in thi s regard. Obviously, the mandate of the statute will have to be followed. There can be no other manner of encadrement than what has been prescribed under the Ac t. The concept of implied encadrement sought to be built-up on behalf of the app ellants, therefore, cannot be accepted by the Court. Under the 1982 Rules, it is only the general Graduate teachers who had been encadred. ( 33 ) We have noticed from our understanding of the provisions of the Rules fra med from time to time as delineated above that Graduate Classical teachers we re encadred for the first time by the 1991 Rules in Grade IV of the Service and further that in the said Grade general Graduate teachers were also included. The two cadres, therefore, though may have been distinct and separate to begin with became equivalent subsequently. This is further made clear by the provisions co ntained in Rule 9 of the 1991 Rules providing promotion to Grade II and III of t he Service from serving members of Grade IV of the Service subject to their havi ng the requisite period of qualifying service. Graduate Classical teachers, t herefore, became eligible for promotion to higher Grades in the Service in the s ame manner as general Graduate teachers. In so far as the period of qualifying s ervice stipulated by Rule 9 is concerned, under Rule 13 of the 1982 Rules, which remained unaltered by the 1991 Rules, the seniority of a member of the Service is primarily required to be determined on the basis of the date of continuous ap pointment/ date of joining and if the said dates are same, by reference to date of birth. By virtue of the provisions of the 1982 Rules, general Graduate teache rs were given seniority with effect from the date of their initial appointment. Once Graduate Classical teachers were encadred in the Service by the 1991 Rul es, no different treatment could have been given to such teachers because the af oresaid Rule 13 continued to hold the field. Graduate Classical teachers, the refore, also became entitled to seniority from the date of their initial appoint ment. Such entitlement was actually implemented in some cases as evident from th e specific details furnished by the petitioners in their pleadings in WP (C) No. 7125/2003. The Government Letters dated 4. 5. 2001 and 15. 6. 2002 attempted to strike a discordant note in this regard. The said orders were, therefore, chall enged before this Court. However, before an answer could be provided to the issu e raised by the Graduate Classical teachers in the writ petitions filed chall enging the said orders i. e. WP (C) Nos. 462 and 5026 of 2002, the 2003 Rules ca me into force essentially granting legislative recognition to the principles con tained in the aforesaid two Government Orders. ( 34 ) Under the 1991 Rules Graduate Classical teachers were encadred and inc luded in Grade IV along with general Graduate teachers. By the said Rules Gradua te Classical teachers became entitled to promotion in the same line as genera l Graduate teachers and further Graduate Classical teachers were entitled to have the benefit of service from the date of initial appointment for computation of seniority. The Court will have to understand that though the two cadres were made to keep their independent identities, yet, Graduate Classical teachers were brought at par with general Graduate teachers by the 1991 Rules in so far a s status/ rank (both groups became members of Grade IV of the Service); pay and promotional avenues and benefit of service prior to provincialisation is concern ed. In contradiction to the above what the 2003 Rules had attempted to do is cle ar and obvious. Though encadred along with general Graduate teachers as members of Class II (Junior) of the Service, Graduate Classical teachers have been ex cluded from the promotional avenues provided by Rule 14 (4 ). It is only the gen eral Graduate teachers who have been made eligible for promotion and by the deem ing provision contained in Rule 24 (2) (ii) of the 2003 Rules Graduate Classical teachers have been included in the cadre of general Graduate teachers for th e purpose of promotion in the same line but only with effect from 3. 8. 90. Thei r seniority is also to be counted from the same date. In effect, what the 2003 R ules purports to do is to wipe out the pre-existing and accrued rights of the Gr aduate