WP(C) 142/2008 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY The determination of inter se seniority by the Director of Highe r Education, Assam, placing the respondent No. 6 above the petitioner is under c hallenge in the instant proceeding. This Court by order dated 5/3/2008 as an int erim measure kept in abeyance the letter dated 12/11/2007 of the aforementioned authority to the said effect. I have heard Mr. B. Banerjee, learned Counsel for the petitioner , Mr. M.K. Mishra, learned Standing Counsel, Education Department and Dr. Y.K. P hukan, Sr. Advocate for the respondent No. 6. The petitioner has averred that she is a Master of Arts in Philo sophy and has acquired Ph. D. in the year 1982 from the Gauhati University. She was appointed as a Lecturer in the Department of Philosophy in the College on 7/ 11/1981 being adjudged to be eligible and qualified for the post. The College wa s brought under the deficit system of grants in aid w.e.f. 1/2/1985 vide communi cation dated 9/9/1985. In the chart appended to the said letter while the name o f the petitioner appeared at Sl. No. 2 under the Philosophy Department of the Co llege under the Assamese Department, two posts were shown to be vacant. This, th e petitioner contends, was as inter alia the respondent No. 6 who had been servi ng the said department then did not posses the requisite qualifications as per t he norms prescribed for the post. The petitioner thereafter was sanctioned senio r and selection grade scales of pay w.e.f. 1/2/1990 and 1/2/1998 respectively. By a letter dated 22/1/1988 of the Director of Public Instruction, Assam, the se rvices of the respondent No. 6 and another Lecturer of the College were brought under the deficit system of grants in aid w.e.f. 1/4/1987 with a fixed U.G.C. in itial basic pay of Rs. 700/- plus other allowances. The letter disclosed that th e said two lecturers did not posses the State Government’s approved revised norm s for the posts but were being brought under the deficit system of grant in aid in consideration of the fact that they had been working in the College for three years prior to 1/1/1987 against sanctioned posts. According to the petitioner, aside the fact that the appointment of the responde nt No. 6 w.e.f. 1/4/1987 though deficient in the eligibility norms was irregular , she still was junior to her (petitioner), on a comparison of the dates on whic h their services had been brought under the deficit system of grants in aid. Con tending that the respondent No. 6 had been drawing senior scale of pay w.e.f. 13 /10/2001, the petitioner has pleaded that on that count as well, she is entitled to be regarded as senior to her. No affidavit in opposition has been filed on b ehalf of the State respondents. In her counter, the respondent No. 6 while assid uously refuting the claim of seniority by the petitioner has asserted that she h aving joined the College on 28/8/1979 as a founder lecturer in Assamese against a substantive vacancy, her length of service being apparently longer than that o f the petitioner, the impugned order is valid. While admitting that at the time of taking over of the College under the deficit system of grants in aid she was not possessed of the required norms, she insisted that her services were duly br ought under the deficit system of grants in aid w.e.f. 1/4/1987. She claimed to have acquired M. Phil. from Guwahati University on 18/11/1993 whereafter she was allowed to draw U.G.C. scale of pay by order dated 13/3/2001. According to her, the issue of inter se seniority between the parties is akin to one raised in WP (C) 2872/1999 in which this Court in its judgment dated 20/2/2002 ruled that the same has to be reckoned on the basis of the date of initial appointment against substantive vacancy. The answering respondent has, therefore, maintained that s he had been rightly held to be senior over the petitioner. In her rejoinder affi davit, the petitioner in substance reiterated and reaffirmed the statements made in the writ petition. Mr. Banerjee has argued that in terms of Rule 9(2) of the Assam Aided College Employees Rules, 1960 (hereafter referred to as the Rules) the int er se seniority has to be essentially determined in accordance with the date of substantive appointment and, therefore, as the petitioner had been brought under the deficit system of grants in aid more than two years before the respondent N o. 6, she is obviously senior of the two and, therefore, the impugned order to t he contrary is illegal and nonest in law. As admittedly at all relevant times, t he respondent No. 6 was deficient in eligibility for being appointed as a Lectur er of an aided College, her services prior to 1/4/1987 in any view of the matter cannot enure to her benefit for the purpose of seniority and, therefore, the de cision to hold her senior to the petitioner, counting the same is patently flawe d and unsustainable in law. The learned Counsel urged that the respondent No. 6 services prior to 1979 being adhoc and fortuitous in nature cannot be applied to compute her seniority. Mr. Banerjee placed reliance on the decision of this Cou rt in Mejum Karga versus State of Arunachal Pradesh and others, 2005 (3) GLT 92. Mr. Mishra sought to sustain the impugned order by placing relia nce on the decision of this Court in WP(C) 2872/99, Dr. Nirmali Deka versus Stat e of Assam and others (since disposed of on 20/12/2002). Dr. Phukan has argued that the respondent No. 6 at the time of h er initial appointment was eligible therefor and her services being continuous w .e.f. 28/8/1979, she has been rightly held to be senior over the petitioner. As the said respondent though adjudged to be academically deficient on the date on which the College was brought under the deficient system of grants in aid, she w as not dislodged from the services and as thereafter she was also brought under the deficit system of grants in aid w.e.f. 1/4/1987 and accorded the UGC scale, her services prior thereto cannot be wiped of to judge her seniority. Dr. Phukan emphatically urged that the determination in Dr. Nirmali Deka, supra, squarely applies to the facts of the instant case and the impugned order when tested on t he touchstone of the principle propounded therein is unassailable. I have bestowed my anxious consideration to the rival pleadings and the arguments advanced. It is a matter of record that the date of appointmen t of the respondent No. 6 as a Lecturer of the College is earlier than that of t he petitioner. There is no dispute as well that on the date on which the College was brought under the deficit system of grants in aid, the respondent No. 6 was found to be wanting in the required norms for which her services were not broug ht under the scheme. The petitioner, however, having been found to be eligible w as shown to have been appointed against a sanctioned post with effect from that date i.e. 1/2/1985. She was thereafter sanctioned the senior scale and selection grade scale of pay w.e.f. 1/2/1985 and 1/2/1998 respectively. The service of th e respondent No. 6 was brought under the deficit system of grants in aid w.e.f. 1/4/1987. The letter dated 22/1/1988 to the said effect clearly mentions that sh e did not posses the State Government approved revised norms but had been brough t under the said scheme in recognition of the fact that she had been serving the College for three years prior to 1/1/1987 against a post sanctioned by the Gove rnment. In the table forming a part of the communication disclosing the names an d particulars of the Lecturers brought under the deficit system of grants in aid w.e.f. 1/4/1987, the post against which the respondent No. 6 was considered to be serving was shown to have been sanctioned by the letter No. G(A) AC-12/05/07 dated 9/9/1985. The said letter being not a part of the records, it is not possi ble to ascertain the date on and from which the post had been sanctioned. Incide ntally, the extract of the service records appended to the affidavit of the resp ondent No. 6 also indicates that the post against which the respondent No. 6 had been appointed on substantive basis had been sanctioned by the aforementioned l etter. The question involved in Dr. Nirmali Deka, supra, was whether th e seniority is to be determined from the date of the initial appointment or from the date of attainment of eligibility to be entitled to the U.G.C. scale of pay . The facts of that case disclose that the writ petitioner therein had joined th e College involved as a honorary part time Lecturer on 1/2/1984 but the responde nt No. 6 as a regular Lecturer on and from 1/9/1987. This Court on a survey of v arious decisions of the Apex Court held that seniority ought to be determined fr om the date of initial appointment against substantive vacancy and in absence th ereof from the date when the same is available. It was noticed that the responde nt No. 6 had been appointed as a regular Lecturer by the competent authority w.e .f. 1/9/1987 and that the petitioner’s services were brought under the deficit s ystem of grants in aid w.e.f. 1/4/1990 and was thus construed to be a regular Le cturer w.e.f. that date. Applying the above yardstick, the seniority of responde nt No. 6 above the petitioner was sustained. Noticeably none of the parties was ascertained to be lacking in the eligibility norms during the relevant period. The contextual facts in the above case are distinguishable from those in the case in hand. The respondent No. 6 was admittedly lacking in the el igibility norms on the date on which the College had been brought under the defi cit system of grants in aid as well on 1/4/1987. The eligibility of the petition er on 1/2/1985 is not in doubt. In that view of the matter, to apply the benchma rk of length of service against a sanctioned post for the two candidates, in the opinion of this court would not be a valid criteria to reckon their inter se se niority. The respondent No. 6’s service of three years prior to 1/1/1987 though acknowledged to bring her under the deficit system of grants in aid, the shortfa ll in the eligibility norms notwithstanding it cannot accrue to her benefit for the purpose of seniority. Construed otherwise, the respondent No. 6 would enjoy an undue advantage over the petitioner though not qualified during the period to be accounted for prior to 1/4/1987. The fact that the respondent No. 6 has remo ved her shortcomings in eligibility subsequent to 22/1/1988 would not entitle he r as well to the benefits of service prior to 1/4/1987 for determining the inter se seniority of the parties. Instead in the peculiar facts of the case, the dat es on and from which the service of the petitioner and the respondent No. 6 were brought under the deficit system of grants in aid, i.e. were construed as regul ar lecturers, should be acted upon for the purpose. By applying the said determi nant, it is apparent that the petitioner is senior to the respondent No. 6. This accords as well with the prescription of Rule 9(2) of the Rules, which mandates the date of substantive appointment to be the measure for determining the inter se seniority of the persons involved. The Rules do not logically contemplate su bstantive appointment of a person deficient in the prescribed norms of eligibili ty, academic or otherwise. In the above view of the matter, the petition succeeds. The impu gned communication dated 12/11/2007 being unsustainable is set aside. The petiti on is adjudged to be senior to respondent No. 6. No costs.