WP(C) 2931/2007 BEFORE HON’BLE THE AMITAVA ROY The orders dated 8/6/2007 of the Director of Secondary Education , Assam, holding that the respondent No. 4 was entitled to be the in-charge Prin cipal of Batgharia Higher Secondary School (hereafter referred to as the School) in addition to his normal duties and his installation as such have been impugne d in the instant proceeding. The petitioner claims to be the senior most Assista nt Teacher of the School and thus entitled to hold the charge of the said office . 2. I have heard Mr. DC Mahanta, Sr. Advocate for the petitioner and Mr. VM Thomas, learned Standing Counsel, Education Department for the official respondents. Also heard Mr. KK Phukan, learned Counsel for the respondent No. 4. 3. The abridged facts pleaded by the petitioner are that being appo inted as a Hindi Teacher of the above named school, he joined the institution on 1/4/1978. He thereafter passed the B.A. examination in the year 1985 and also a cquired the B. Ed. in the year 1995. In the meantime, he also passed the Hindi P rabin Examination in the year 1979 and B. Ed. (Hindi) Examination in the year 19 84. According to him, the Inspector of Schools, Dhemaji District Circle, Dhemaji , acknowledging him to be the senior most Assistant Teacher of the School allowe d him to discharge the duties of the Principal of the School in addition to his normal duties by his order dated 19/2/2005. On the eve of the retirement of the regular Principal, Shri Mahendra Nath Konwar on 30/4/2007, the petitioner being the senior most Assistant Teacher submitted an application on 27/3/2007 to be th e Principal in-charge of the School. Thereafter the said authority by his order dated 5/5/2007 permitted the petitioner to hold the charge of the Office of the Principal of the School subject to the approval of the Director of Secondary Edu cation, Assam. The arrangement was supposed to continue till a regular incumbent was appointed to the said office. The petitioner has averred that in between, o n 19/3/2007, the Principal of the institution had forwarded the statement of par ticulars of teachers for selection for the post of Principal/Vice Principal ther eof in which the name of the petitioner appeared at serial No. 1. It was at that stage that by the impugned orders dated 8/6/2007 referred to above, the respond ent No. 4 was held entitled to hold the charge of the office of the Principal of the School in preference to the petitioner. Contending that he is academically superior to the respondent No. 4 and further senior to him in service, the petit ioner has questioned the legality and/or validity of the said decision. 4. The Deputy Directory of Secondary Education, Assam, in his affid avit while asserting that the Inspector of Schools Dhemaji, had no authority to appoint the petitioner as the Vice-Principal in-charge of the School in terms of Rule 2(n) of Assam Secondary Education (Provincialisation) Service Rules, 2003, (hereafter referred to as the Rules) has maintained that the respondent No. 4, Assistant Teacher of the said School was senior in service to the petitioner as per Rule 24(2)(ii) of the Rules. According to the deponent, the seniority of a H indi Teacher (Classical) is to be counted with effect from 3/8/1990 in terms of the Government letter No. B(3) S-244/99/42 dated 3/8/1990. As the respondent No. 4 was appointed as Assistant Teacher on 20/9/1980 in the same school, he was ap parently senior to the petitioner and thus was permitted to hold the charge of t he office of the Principal of the School on due determination of the inter se se niority of the parties. 5. The respondent No. 4 while reiterating the above stand of the St ate authority has pleaded that by order dated 8/6/2007, after a detailed conside ration of all relevant aspects, he was held entitled to hold the charge of the o ffice of the Principal of the School and following the said arrangement, he on 1 2/6/2007 assumed the office. He has stated that inspite of the petitioner’s acad emic degrees, he was in law not eligible for promotion to the post of Principal and it was only as per the Government circular dated 3/8/1990 whereby the Classi cal Teachers of Hindi, Sanskrit etc had been inducted in the cadre of general te achers that he was qualified to be considered therefor. The answering respondent appended to his affidavit the notification/circular dated 3/8/1990, the office memorandum dated 15/6/2002 and the order dated 3/5/2007 of the Principal Secreta ry to the Government of Assam, Education Department, and the Inspector of School s, DDC, Dhemaji, respectively along with the guidelines for finalization of seni ority in respect of High/Higher Secondary School teachers to buttress this conte ntion. In an additional affidavit filed by the said respondent, he asserted to h ave taken over charge of the office of the Principal of School on 12/6/2007. 6. Mr. Mahanta has emphatically urged that as the petitioner is aca demically qualified and eligible to be recruited to the post of Principal of Sch ool, he is entitled to be the in-charge of the said office pending regular appoi ntment, he being the senior most Assistant Teacher of the institution. According to him, school seniority being the determinative criteria to ascertain such ent itlement, the respondent No. 4 who is apparently junior to the petitioner could not have been favoured with the said benefit. The learned Sr. Counsel urged that in the meantime the petitioner has appeared in the selection for regular appoin tment as Principal, which demonstrates that he is eligible therefor. In any view of the matter, as the impugned orders occasion replacement of one adhoc employe e by another, the same cannot be sustained in law. The learned Sr. Counsel conte nded that the contentions based on the office memorandum/circular dated 3/8/1990 are inconsequential in view of the determination of this Court in Sadou Asom Ma dhyamic Snatak Bhasha Shikhak Santha and others versus State of Assam and others , 2004 (3) GLT 627 adjudging Rule 24(2)(ii) as ultra vires. In support of his co ntentions Mr. Mahanta placed reliance also on the decision of this Court rendere d in Sujit Paul versus State of Assam and others, 2007 (2) GLT 329. 7. Mr. Thomas as against this has argued that it being obvious from the office memorandum/circular dated 3/8/1990 and Rule 24(2)(ii) of the Rules t hat the seniority of a Classical Teacher in the grade of Graduate Teacher is to be computed w.e.f. 3/8/1990, the petitioner’s claim of superior seniority over t he respondent No. 4 is misconceived and, therefore, the impugned orders are unas sailable. 8. Mr. Phukan while abiding by the above submission has taken this Court to the documents annexed to the respondent No. 4’s affidavit to contend th at in view of the consistent and conscious decision of the respondent authoritie s to count the seniority of a classical teacher w.e.f. 3/8/1990, the plea incons istent therewith is untenable. As the respondent No. 4 in the meantime has assum ed the charge of the office of the Principal of the School and the arrangement i s a temporary one, no interference is called for. 9. I have extended my thoughtful consideration to the rival submiss ions. Indubitably the Rules regulate the recruitment and conditions of services of the persons appointed to the Assam Secondary Education (Provincialisation) Se rvices. Under Rule 12, the posts of Principal in Higher Secondary Schools and Mu ltipurpose Schools are to be filled up by direct recruitment on the basis of the selection made by the State Selection Board at the State Level. The minimum qua lification for appointment to the post of Principal is 15 years of teaching expe rience as Post Graduate Teacher in any Higher Secondary and Multipurpose School or 17 years of teaching experience as Graduate Teacher in any Higher Secondary a nd Multipurpose School. The candidate must not be aged less than 40 years and mu st posses a commanding personality, administrative ability and integrity. There is no wrangle at the bar that both the petitioner and the respondent No. 4 are e ligible to be recruited to the post of Principal of the School. Rule 24(2)(ii) o rdains that the seniority of a Classical Teacher would be counted as per Governm ent Letter No. B(3)S.244/99/42 dated 3/8/1990 from that date. Incidentally the v ires of this provision came to be assailed before this Court amongst others in S adou Asom Madhyamic Snatak Bhasha Shikhak Santha and others, supra. The learned Single Judge upheld the challenge and adjudged Rule 24(2)(ii) of the Rules to be unconstitutional and ultra vires and struck down the same. Against the said dec ision WA 128/05, Azizur Rahman Talukdar and others versus Sadou Asom Madhyamic S natak Bhasha Shikhak Santha and others, has been preferred. The appeal has been admitted and is pending disposal. Further the Division Bench of this Court by or der dated 18/2/2007 passed in Misc. Case 414/05 has suspended the operation of t he judgment impugned. In this factual premise in absence of any challenge to the vires of Rule 24(2)(ii) of the Rules in the instant proceeding, this Court cons iders it inappropriate to act on the ratio of the determination of the learned S ingle Judge in the above case more particularly when the issue is sub judice bef ore a higher forum. 10. That school seniority is an accepted and extant criteria for in charge incumbency in the office of the Principal of a Higher Secondary School is not in dispute. As a matter of fact this Court in Sujit Paul, supra, has acknow ledged and approved the said determinant. Unmistakably, however, such seniority would be relevant only if the candidate concerned is otherwise eligible to hold the said post. The decision to include the classical teachers of Hindi, Sanskrit , Assamese having degree qualification in the cadre of general teachers for exte nding the benefit of promotion to higher post in the same line of general teache rs as embodied in the circular/memorandum dated 3/8/1990 got engrafted in Rule 2 4(2)(ii) of the Rules which mandates that seniority of such classical teachers w ould be counted w.e.f. 3/8/1999. In the prescribed criteria for fixation of seni ority in respect of High/Higher Secondary teachers, the same stipulation has bee n reiterated. The office memorandum dated 15/6/2002 (Annexure D to the affidavit of the respondent No. 4 also affirms the said decision. By the order dated 3/5/ 2007 of the Inspector of Schools, DDC, Dhemaji, the service of the petitioner ha s been converted from that of Hindi Graduate Teacher to General Graduate Teacher (Arts). There are series of directions of the concerned authorities of the Educ ation Department to compute the seniority of classical teachers brought into the cadre of general teachers for the purpose of promotion to higher post on and fr om 3/8/1990. 11. Though it has been contended in course of the arguments that the petitioner has already appeared in the selection for regular appointment to the post of Principal of the School, the same does not stand corroborated by any do cumentary evidence. 12. The fact that emerges is that the petitioner’s service seniority as a Graduate Teacher is computable only w.e.f. 3/8/1990. The post of Graduate Teacher being the feeder post for recruitment to the office of the Principal, se niority therein would be relevant to determine the entitlement of the in-charges hip thereof as well. Admittedly the respondent No. 4 had been appointed as a Gra duate Teacher in the School w.e.f. 20/9/1986. Viewed from that angle, he is seni or to the petitioner as a graduate teacher. The respondent No. 4’s assertion tha t in the meantime, w.e.f. 12/6/2000, in compliance of the impugned orders he has assumed the office of the Principal of the said School has remained un-refuted. The arrangement devised by the impugned decision being a stop gap one to be sub ject to the regular appointment on the basis of the selection in terms of the Ru les, I am of the considered opinion that in the facts and circumstances as obtai ned in the instant case, no interference with the orders impugned is warranted i n the exercise of this Court’s power of judicial review. The petition being with out any merit is dismissed. No costs.