WP(C) 3715/2010 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. K.K. Mahanta, learned Senior Counsel appearing for the writ petitioner . The private respondent is represented by Mr. H.K. Sarma, learned counsel. The official respondents are represented by Mr. S.K. DAs, learned Standing Counsel, Education Department. 2) The writ petitioner challenges the order dated 17.5.2010 of the Commissioner/Secretary to the Government of Assam, Education (Secondary) Departm ent, whereby the private respondent is declared to be senior to the writ petitio ner. The petitioner also challenges the consequential order of the Director of S ecretary, Education (DSE) whereby the private respondent was posted as In-charge Headmaster of the Patuakata High School in Morigaon district. 3) The Commissioner considered that the school was provincialized w .e.f. 19.11.1999 and the writ petitioner as well as the private respondent were given the graduate scale of pay w.e.f. the date of the school’s provincializatio n. Accordingly to determine their seniority, their services at the pre-provincia lized stage of the school was taken into account. It was then found that the wri t petitioner joined as Assistant Teacher in the School on 14.09.1986, whereas th e private respondent joined as a Hindi Teacher in the school on 01.02.1986. Thu s counting their service duration at the pre-provincialized stage, the impugned declaration was made that the private respondent is senior to the writ petitione r. 4) Assailing the order dated 17.05.2010 of the Commissioner, Mr. KK Mahanta, learned Senior counsel submits that the private respondent was not a g raduate when she joined on 1.2.86 as a Hindi teacher of the school and only in t he year, 1987, she acquired the graduate qualification. On the other hand, the w rit petitioner joined the school on 14.09.1986 with graduate qualification as a graduate teacher. Therefore, the service rendered by the private respondent befo re she graduated, cannot be considered to be at par, with the service rendered b y the writ petitioner as a teacher with graduate qualification. 5) Defending the seniority declaration, Mr. SK Sarma, learned couns el points out that as the private respondent joined the school earlier to the wr it petitioner, she had a longer tenure of service than the writ petitioner, at t he pre-provincialized stage. The learned counsel also contends that there is no differentiation of teachers with graduate qualification and teachers without gra duate qualification at the pre-provincialized stage in a high school, and theref ore, the length of continuous service was rightly considered to be a relevant cr iteria, for declaration of seniority of the private respondent over the writ pet itioner. 6) The Standing Counsel of the Education Department, Mr. SK Das, su bmits that at the pre-provincialized stage, there is no distinction amongst the teachers on the basis of their respective educational qualification and accordin gly, the respondent not being a graduate when she joined the service will not im pact her seniority claim over the writ petitioner, as the later joined the schoo l a few months after the joining of the private respondents. 7) The impugned declaration made by the Commissioner on 17.05.2010 in favour of the respondent was in pursuant to the direction given by the Court on 22.07.2009 while disposing of Writ Petition(c) No.4871/2008, filed by Julekha Begum. In the said writ petition, the petitioner, Julekha Begum challenged the order dated 15.10.2008, whereby the Commissioner had earlier declared the writ p etitioner to be senior to the private respondent in terms of the provisions of T he Assam Secondary Education(Provincialized) Service Rules, 2002 (for short, th e Rules ) whereby under Rule 14(2)(ii), seniority of teachers in Classical subj ects, like Hindi was required to be counted w.e.f. 03.08.1990, according to the Govt. Notification issued on the said date. 8) But subsequently, a Full Bench of this Court, in Rukmini Bora an d another vs. State of Assam and others reported in 2009(3)GLT 834 had declared Rule 24(2)(ii) of the Rules to be unconstitutional and invalid and accordingly, the respondent sought a direction in W.P.(C)No. 4871/2008 for re-determination of her seniority, in light of the Full Bench decision in Rukmini Bora(supra). 9) Since the Full Bench of this Court held that classical teachers with graduate degree will be entitled to count their seniority at par with the o ther graduate teachers, the Court felt that the seniority declaration made earli er against the respondent requires a fresh look and accordingly a direction was given for a fresh decision on the seniority dispute in light of the Full Court’s decision. 10) Thereafter, purportedly following the decision in Rukmini Bora(s upra), the Commissioner held that the respondent will be entitled to count her s eniority at par with other graduate teachers and accordingly, after considering that the respondent had joined service a few months before the writ petitioner, the impugned seniority declaration was made on 17.05.2010. 11) The question that is required to be answered in the present case is whether the service rendered by the private respondent prior to obtaining th e graduate degree should be counted at par with the writ petitioner who started service with a graduate degree. Although Rule 24 of the Rules do not provided a ny guidelines for determining seniority of teachers at the pre-provincialized st age on the basis of educational qualifications, in the provincialized stage, the re are distinct classes of teachers depending upon their educational qualificati ons. For instance, a person with P.U. qualification is appointed as intermediate teacher whereas a person with graduate qualification is usually posted in the g raduate scale. Therefore, although no separate distinction is made at the ventu re stage on the basis of educational qualifications of teachers, when seniority is being considered only on the length of service, it would be wrong in my view to mechanically take note the length of service, without considering the particu lar class in which, the service is rendered by an incumbent. 12) The private respondent when she joined service on 1.2.1986, was not a graduate and she obtained the graduate degree only in the year 1987. But t he writ petitioner joined the school on 14.9.1986 as a graduate. But by the time the school came to be provincialized on 19.11.1991, the private respondent too had obtained her graduate qualification in the year 1987 and accordingly both ha ving received the graduate scale from the same date, was considered to be at par with each other. But during the re-consideration exercise made by the Commissio ner in pursuant to the Full Bench decision in Rukmini Bora(supra), what was over looked by the Commissioner was that the Full Bench’s declaration was given on th e pre-existing and accrued rights of the Graduate Classical Teachers. The respon dent prior to 1987 cannot be considered to be Graduate Classical Teacher and the refore in my view, her service before graduation should not have been taken into account for declaring her to be senior to the writ petitioner. 13) The Supreme Court in the case of M. Ramachandra vs. Gobind Balb and others reported in 1999(8) SCC 592 has held that length of service in a part icular class, category or grade is relevant for counting the length of service f or determining seniority. A similar view was also taken by the Supreme Court in Kausal Kishore Singh vs. Dy. Director of Education and others reported in 2002 (9) SCC 634, wherein it is declared that- the claim of seniority of the employ ee is always determined in any particular grade or cadre and it is not the law t hat seniority in one grade or cadre would be dependent on the seniority in anoth er grade or cadre. Having regrd to these decisions of the Apex Court, I hold t hat the view taken by the Commissioner in the impugned order dated 17.05.2010 is inconsistent with the Law declared by the Apex Court in M. Ramachandra(supra) a nd Kaushal Kishore Singh(supra). 14) In view of the Law laid down by the Supreme Court in M. Ramachan dra(supra) and Kaushal Kishore Singh(supra) and also taking into account the pur port of the Full Bench decision in Rumini Bora (supra) which referred to the Gra duate Classical Subject Teachers, I am of the considered opinion that the impugn ed declaration made by the Commissioner in favour of the respondent is unsustain able in Law and the same is accordingly quashed. The consequential order of the Director, DSE, whereby the respondent was posted as In-charge Headmaster of Put uakata High School, Morigaon is also interfered with. 15) Writ petitions stand allowed with the above order.