WP(C) 4538/2009 BEFORE THE HON’BLE MR. JUSTICE T VAIPHEI In this writ petition, the legality of the order dated 30-9-2009 (Annexu re-6) denying the benefit of the past service rendered by Demonstrators represen ted by the petitioner-association before coming into force of the Assam Secondar y Education (Provincialization) Service Rules, 2003 ( the Recruitment Rules for short) for the purpose of seniority/promotion to the post of Principal and Vice -Principal of Higher Secondary Schools is called into question in this writ peti tion. 2. The factual background leading to the filing of this writ petition, as p leaded by the petitioner-association, are that the association is a registered a ssociation of Demonstrators working under the Government as well as provincialia sed Higher Secondary Schools in Assam with a membership of more than 200 and tha t all of them have the qualification of degree in Science, which is the qualific ation for the post of Demonstrator in these Higher Secondary Schools. The post o f Demonstrator was introduced in the year 1973 to teach practical classes in Sci ence subject in those Schools. Although they were recruited for teaching practic al classes, the Government of Assam by different circulars used to treat these D emonstrators as normal teachers for all practical purposes and allotted normal c lasses to them in the absence of sufficient teaching staff in the schools. They also used to be appointed as in charge Principal in various Higher Secondary Sch ools. In the year 2005, the respondent No. 2, who is the Director of Secondary E ducation, Assam had directed all the Inspectors of Schools in the State to furni sh the particulars of the Demonstrators along with Graduate Teachers of the prov incialised Higher Secondary Schools for promotion to the next higher posts i.e. Principal and Vice-Principal. Accordingly, the Demonstrators who are senior in t he Schools were called for interview and were interviewed for promotion. It is a lleged by the petitioner-association that though Demonstrators were working as g raduate teachers and were also getting graduate scales from the respective dates of their appointments, no services rules were framed by the Government to gover n their service conditions. This induced them to file various representations to the Government for framing the rules. Ultimately, the Government of Assam frame d the Recruitment Rules which came into force w.e.f. 11-8-2003. 3. It is also the case of the petitioner-association that Rule 24(2)(ii) of the Rules was challenged by the Classical Teachers of the same Secondary School s, which stopped the whole promotion process with the result that the schools ca me to be run by in-charge Principals. A Full Bench of this Court by the judgment and order dated 25-6-2009 disposed of the appeal being W.A. No. 128 of 2005 by holding that Rule 24(2)(ii) of the Rules as ultra vires and that the seniority o f the Classical Teachers are to be counted from the date of joining the post of Classical Teachers. In the meantime, the Demonstrators had already appeared in t he selection process of Principal and Vice-Principal of these schools and were l ikely be selected for promotion to these posts in terms of the Recruitment Rules . However, the Under Secretary to Government of Assam, Education Department issu ed the impugned order directing the respondent No. 2 to count the seniority of t he Demonstrators only with effect from the date of coming into force of the Recr uitment Rules i.e., from 11-8-2003 as they had been included as Assistant Teache r (Graduate) by Rule 2(n) and 2(v) thereof only from that date. The Under Secret ary had issued the order dated 30-9-2009 in connection with WP(C) No. 4974/08 in which the petitioner therein was a Demonstrator, who was allowed to hold the ch arge of Principal of the School by the Inspector of Schools. The said order had been cancelled by the respondent No. 2 on 29-8-2006 on the ground that the Inspe ctor of Schools had no power to do so. The petitioner thereafter filed a represe ntation to the respondent No. 2 to modify the order dated 29-8-2006 and allow hi m to act as in-charge Principal as he is the senior-most Teacher (Demonstrator) in the School. This Court by the order dated 6-2-2009 directed the respondent au thorities to adjudicate on the claim of the petitioner as the senior-most teache r of the School as envisaged by Rule 24(2)(viii) and Rule 31 of the Rules. 4. It is also the case of the petitioner that in compliance with the order of this Court dated 6-2-2009, the respondent No. 2 by his letter dated 20-8-2009 forwarded the case to the respondent No. 1 for clarification. The Under Secreta ry, Education Department thereafter issued the impugned letter stating that he h ad been directed to instruct the respondent No. 2 to count the seniority of the Demonstrators only w.e.f. 11-8-2003 when the Recruitment Rules came into force. On the basis of the impugned letter, the respondent No. 2 passed the consequenti al order on 5-10-2009 depriving the members of the petitioner-association of the ir right to promotion to the post of Principal. According to the petitioner-asso ciation, the posts of Demonstrators were created in the year 1973 for Higher Sec ondary Schools in the State, the minimum qualification whereof is a graduate in Science, and were given the salary of graduate scale of pay from the dates of th eir respective regular appointments though no service rules were framed in that behalf. The Demonstrators were treated and utilized as normal teachers whenever there were shortages of teaching staff. In the Recruitment Rules, the Government of Assam for the first time brought the post of Demonstrators in the cadre of G raduate Teachers and Post-Graduate Teachers of the schools. Rule 24(1) provides that the inter-se-seniority of the teachers belonging to Graduate and Post Gradu ate Teachers shall be considered for filling up the vacancies of Vice-Principal on the basis of continuous service in the school irrespective of whether they ar e graduate or post graduate post on regular basis, but the Rules nowhere provide that the seniority of a demonstrator will be counted only from the date of the coming into force of the Rules. These are the main contentions of the petitioner . It is, therefore, contended by the petitioner-association that the impugned le tters are arbitrary, discriminatory and illegal and is liable to be quashed. 5. The writ petition is contested by the State-respondents by filing their affidavit-in-opposition. The case of the answering respondents is that there are altogether 549 numbers of the sanctioned posts of Demonstrators in the Governme nt and provincialised Higher Secondary Schools under the Directorate of Secondar y Education, Assam. The minimum educational qualification of a candidate for app ointment to the post of Demonstrator in these Government and provincialised High er Secondary School as prescribed by the Government is a graduate in Science wit h 2nd Class Honours/Major in the concerned subject while their pay scale was sim ilar to the Assistant Head Master/Assistant Head Mistress/Assistant Superintende nt of High School/High Madrassa: this pay scale has been made personnel to the t hese Demonstrators in service while the pay scale for the newly appointed Demons trators has been fixed at the same pay scale of Graduate Teacher in High and Hig her Secondary Schools. The services of teaching and non-teaching staff of provin cialised High and Higher Secondary Schools of Assam are governed by the Assam Se condary Education (Provincialisation) Act, 1977, which came into force on 1-10-1 977 and the service rules framed thereunder from time to time. The term Demonst rator has not been defined till the Recruitment Rules came into force. Accordin g to the answering respondents, the functions of Demonstrators in Higher Seconda ry Schools are to help and instruct the students in practical classes in laborat ories, and they are not required to take regular classes like subject teachers, language teachers, graduate teachers, etc. They might have taken up regular clas ses in the absence of normal regular teachers of the concerned subjects, but tha t does not give them the status of graduate teachers or subject teacher or langu age teachers: their main duty is to take practical classes only. 6. It is pointed out by the answering respondents that one Maniram Nath, De monstrator in Biology at Raha Higher Secondary School (Provincialised) of Nagaon District had filed WP(C) No. 4974 of 2008 before this Court with regard to his seniority and for allowing him to be in-charge Vice-Principal of the School. Thi s Court by the judgment dated 6-2-2009 disposed of the writ petition by directin g them to adjudicate his claim as the senior-most teacher of the School as envis aged by Rule 24(2)(viii) and Rule 31 of the Recruitment Rules and if he was foun d to be the senior-most and if there was no other impediment in law, he should b e considered for holding the post of Principal of the School on in-charge basis after the retirement of the incumbent. Pursuant to the aforesaid directions, the State-respondents in the Education (Secondary) Department, considered the matte r from all angles and determined that as the Demonstrators have been declared to be Graduate Assistant Teachers only after coming into force of the Recruitment Rules, their seniority as Graduate Assistant Teachers would have to be counted w ith effect from the date of coming into force of the Recruitment Rules and not f rom the date of their joining the posts of Demonstrators. This resulted in issui ng the impugned letters, which do not suffer from any infirmity. These are the s um and substance of the case of the answering respondents. The respondents stren uously urge this Court to dismiss the writ petition. In the reply-affidavit, the petitioner-association avers that the post of Demonstrators have been in existe nce for a long period and being a graduate with Honours, they have been getting graduate pay scale like other Assistant Teachers: their method of selection and their appointing authority are one and the same. The Demonstrators cannot, there fore, be deprived of the right to count their seniority from the date of their a ppointments on the ground that their posts came to be encadred as Graduate Assis tant Teachers only in the year 2003: Classical Teachers were also not encadred b ut their seniority has been directed to be counted from the date of joining. 7. Before referring to the submissions of the learned counsel appearing for the rival parties, it will be appropriate to notice the relevant provisions of the Recruitment Rules. Rule 2(n) of the Recruitment Rules defines the term Grad uate Teachers to mean the category of Assistant Teachers in High/Higher Seconda ry /Higher Secondary and Multipurpose/High Madrassa Schools for whose appointmen t the minimum qualification prescribed is a Degree in Arts, Science or Commerce including Demonstrators in Higher Secondary/Higher Secondary and Multipurpose Sc hool. There is no room for doubt that the post of Demonstrator has been included as one of the Graduate Assistant Teachers for the first time in 2003 when the R ecruitment Rules came into force. Similarly, the term Teacher as defined in Ru le 2(v) includes all Assistant Teachers, Faculties including Principal, Vice-Pri ncipal, Headmaster, Headmistress, Superintendent, Assistant Headmaster, Assistan t Headmistress and Demonstrators. Then, Rule 3(1) describes the different classe s and cadre constituting the service, and the post of Demonstrator finds a place at Rule 3(1)(b)(v) as one of the Class II Junior teachers. Rule 12 deals with t he procedure for recruitment to the post of Principal in the Higher Secondary an d Multi-purpose Schools and prescribes that the post of Principal in a Higher an d Multipurpose School shall be filled up by direct recruitment. Rule 12(d) provi des for the minimum qualification for the post of Principal, which, as per Rule 12(d)(i), is 15 years of teaching experience as Post Graduate Teacher in any Hig her Secondary/Higher Secondary and Multipurpose School. Coming now to Rule 14(1) , it speaks of recruitment to the post of Vice-Principal/Head Master/Head Mistre ss/Asstt. Head Master to be filled up by promotion on the basis of combined seni ority in the Schools among Graduate and Post Graduate Teachers with minimum of 1 0 years teaching experience in the case of Post Graduate Teachers and 12 years i n the case of Graduate Teachers. Rule 24(1) is important for our purpose, which is reproduced hereunder: 24.(1) The inter-seniority of the teachers of Graduate cadre and Post-Graduate cadre in a school shall be considered/determined for filling up the vacancies o f Vice-Principal on the basis of:- (i) The date of continuous service in the School irrespective of graduate or post graduate posts on regular basis; (ii) The date of joining ; (iii) The date of birth, position in the merit list recommended by the Selecti on Board; (iv) The date of birth in case of employees holding same position in the meri t list. 8. As already noticed, the Rules came into force on 12-8-2003, when it was published in the Assam Gazette Extraordinary. It is the contention of Mr. R. Ali , the learned counsel for the petitioner, that Rule 24(1) provides that the inte r-se seniority of Graduate Teachers including Demonstrators, and Post-Graduate T eachers in a school shall be counted on the basis continuous service in the Scho ol irrespective of whether they are Graduate or Post Graduate, and nowhere in th e Rules is it stipulated that the seniority of the Demonstrator will be counted only from the date of the coming into force of the Rules. He further submits tha t as the Demonstrators and the Graduate Teachers have been enjoying the same sca le of pay and are having the same qualification, there is no earthly reason to d iscriminate between the members of the Petitioner-association and Graduate and P ost-Graduate Teachers and by means of this device, members of the petitioner-ass ociation have been subjected to hostile discrimination: equals cannot be treated unequally. According to the learned counsel, once the category of Demonstrators has been encadred by legislative fiat, in the absence of an express provision t o the contrary, denying the benefit of their past service for the purpose of sen iority/promotion will be arbitrary and discriminatory. He, therefore, contends t hat the impugned letters are illegal, arbitrary and discriminatory and are, ther efore, liable to be quashed. Strong reliance is placed by him on the Full Bench decision of this Court in Rukmini Bora & anr. V. State of Assam & ors., 2009 (3) GLT 834 to fortify his submissions. On the other hand, Mr. M.R. Pathak, the lea rned State counsel, defends the impugned letters and submits that when the membe rs of the petitioner-association became members of the Graduate Teachers only on the coming into force of the Rules, their past services cannot be counted for t he purpose of seniority: to do so would amount to treating an unequal as equal v is-à-vis the existing Graduate Teachers. He, therefore, submits that the writ pe tition has no leg to stand and should be dismissed. 9. I have given my anxious consideration to the submissions made by the lea rned counsel appearing for the rival parties. As already noticed, the class of D emonstrators have been outside the cadre of Graduate Teachers till the coming in to force of the Rules and that it was only after the coming into force of the Ru les, they have become members of the Graduate Teachers. In common parlance, this device is known as encadrement. The term encadrement means to encadre , but is not specifically mentioned in the Rules. In P. Ramanatha Aiyer’s Advanced Law Lexicon, 3rd Edn., the term encadre is defined as to include in the cadre . Therefore, encadrement means inclusion of the class of Demonstrators in the cadr e of Graduate Teachers. The question to be determined then is whether the past s ervices rendered by the Demonstrators represented by the petitioner-association can be counted for the purpose of seniority in the cadre of Graduate Teachers. I t is true that no retrospective promotion or seniority can be granted from a dat e when an employee has not even been borne in the cadre so as to adversely affec t the employees appointed validly in the meantime. Conversely, retrospective pro motion or seniority can be given affecting the seniority of the existing members of the cadre if the newly included members of the cadre were also appointed val idly. In the instant case, it has been categorically asserted by the petitioner- association that the posts of Demonstrators have been in existence for quite a l ong time; that they being Graduate with Honours were appointed by the same metho d of selection and by the same appointing authority and are getting the same gra duate pay scale of Assistant Teachers. These averments have not been specificall y denied by the answering respondents. It may be noted that the encadrement of t he Demonstrators in the cadre of Graduate Teachers has been made by the rule-mak ing powers of the State-respondents and not by absorption on request or by tran sfer to that cadre on their own volition: the petitioner-association has no role to play. If that were so, it will not be unreasonable to hold that they should be assigned seniority from the date of their encadrement to the Graduate Teacher s: when the encadrement is brought about by the legislative action of the State- respondents, the employees should not be made to suffer. There is nothing wrong with reckoning the regular services rendered by the Demonstrators for the purpos e of seniority when there were no recruitment rules. 10. In M.B. Hiregoudar v. State of Karnataka and others, 1992 Supp(2) SCC 4 91, the appellant was appointed as Junior Engineer by the competent authority in 1970 pursuant to the selection made by the Public Service Commission. There was then no set of recruitment rules governing his recruitment. The appellant worke d on that post uninterruptedly till his promotion to the higher posts in 1980 an d 1984. Meanwhile, the Recruitment Rules came into force on August 23, 1973. The Government considered the appointment of the appellant and another person as be ing in excess of 50 per cent quota for direct recruits fixed under the Recruitme nt Rules, reckoning his seniority w.e.f. August 23, 1973 and accordingly pushed him down to August 23, 1976 in the seniority list prepared in 1987 below the res pondents No. 3 to 7 who were throughout shown junior to him. The Apex Court held that since the posts existed on the establishment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment, it cannot be said that the absence of the recruitment r ules makes the appointment illegal or irregular when it is found that the appell ant, a degree holder, was eligible for appointment to the post. This is so also because irregular appointments were regularised by the Government Memorandum dat ed July 4, 1976. The view of the Government that the initial appointment was irr egular as it had exceeded the quota of 50 per cent for direct recruits was based on the premise that the services must be regularised by applying the 1970 Rules retrospectively. However, the appellant being senior of the two direct recruits appointed as Junior Engineers, he would fill the slot for the one post which we nt to the direct recruits on 50 per cent quota. Moreover, the appellant’s senior ity which had stabilised for a period of time and on the basis whereof he was gr anted promotion by the Government could not be disturbed doubting the regularity of the initial appointment after so many years. It was not as if he had gained experience as a Junior Engineer in a stop-gap arrangement that his experience as a Junior Engineer could be overlooked. The appellant worked on the post uninter ruptedly till he was promoted to the next higher post along with the respondent No. 3 to 7. The Apex Court, therefore, concluded that his experience in the post of Junior Engineer (Mechanical) from 1970 till his promotion to the next higher post could not be ignored. 11. In Tej Narain Tiwary v. State of Bihar, 1993 Supp(2) SCC 623, the Apex C ourt held that the benefit of past service is admissible when an employee is com pulsorily transferred to a new post or when an ex-cadre post is amalgamated with a cadre. That was a case where the appellant was appointed as Special Officer ( Stores) in the pay scale of Rs. 300-500 with effect from 16-8-1969 in Bihar Scho ol Examination Board initially for a period of six months but the services were continued up to 10-3-1971. He was informed that the post of Special Officer (Sto res) would stand abolished from 1-4-1971 and therefore his services would also b e terminated. The appellant filed a suit against it and during the course of lit igation, a compromise was arrived at according to which the appellant was accomm odated on the post of Sectional Head (Section Officer) in lower pay scale of Rs. 230-450 with protection of pay drawn by him as Special Officer (Stores). An ord er was accordingly issued on 20-3-1972 and by the same order the post of Special Officer (Stores) was abolished from the date of issue of this order . The ques tion before the Apex Court was whether the Board was correct in granting him the benefit of the past service rendered by him as Special Officer (Stores) i.e. fr om 16-8-1969. The decision is found at paragraphs 6 and 10 of the judgment: 6. What is obvious from the above order is that the appellant was working a s Special Officer till that time and was appointed in one of the vacant posts of Section Officers with the protection of his pay. We do not know how the amount of Rs. 70 per month was arrived at. Read with the note put up by the Secretary o f the Board, it is apparent that the appellant’s then pay as Special Officer was to be protected entirely. We presume that it was wholly protected. The point to note is that his pay could be protected, whether partially or fully, only if he was transferred from one post to another whether on account of the abolition of the former post or as a matter of compulsory transfer. Read with the office ord er dated March 20, 1972, it appears that the Board had adopted the device of tra nsferring the appellant from the post of Special Officer to the post of Section Officer and then abolishing the post of Special Officer. It is necessary to note this fact, since the Board had interpreted this device as amalgamation of the p ost of Special Officer to that of Section Officer. Further, when it is construed as amalgamation or as a compulsory transfer, the legal consequences are the sam e, viz. that the appellant would have to be absorbed in the post of Section Offi cer from the date of his appointment in the post of Special Officer, viz., Augus t 16, 1969, as it is evident from its order of November 11, 1986, no objection c an be raised in that behalf. However, respondent 5 who was promoted to one of th e posts of Section Officers on August 27, 1970 has contended that the seniority given to the appellant in the post of Section Officer, w.e.f. August 16, 1969 i. e., from the day on which he was appointed as Special Officer, was illegal. We m ay deal with the said contention. & * * * 10. We are of the