WP(C) 4201/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA THE HON’BLE MR. JUSTICE P.K. SAIKIA JUDGMENT AND ORDER (ORAL) B.K. Sharma, J. By means of this writ petition, the petitioner a Science Graduat e Teacher has put to challenge, Rule 24(2)(iii) of the Assam Secondary Education (Provincialised) Service Rules, 2003. The petitioner has also challenge the Ann exure-E order dated 23.6.2010, by which the Director of Secondary Education, Ass am has allowed the respondent No. 4 to hold charge of Principal of Gunialguri H. S. School in the district of Barpeta. According to the petitioner, he having joi ned as Assistant Teacher (Science) on 20.9.1974 and as Graduate Teacher on 1.1.1 975, is senior to the respondent No. 4. 2. Referring to the judgments of this Court, one of the Division Bench and another of the Single Bench, annexed as Annexure-G and H to the writ petition, t he petitioner has contended that his appointment against the post created under Half a Million Job Programme as Graduate Teacher is to be counted from 1.1.1975 with consequential seniority. 3. As against the aforesaid position of the petitioner, the respondent No. 4 was appointed on 25.9.1975 in the intermediate scale of pay. He was upgraded t o the Graduate Cadre with effect from 1.7.1977. Although the petitioner has cont ended that since the respondent No. 4 was transferred to his school in the year 1987 and to be precise on 25.3.1987, he will be entitled to count seniority in t he school only from the said date, but this aspect of the matter need not detain us inasmuch as if it is held that the petitioner is entitled to count seniority with effect from 1.1.1975, then in that case, the respondent No. 4 having been appointed to the graduate cadre with effect from 1.1.1977, will rank junior to t he petitioner. 4. The issue is no longer res-integra and has been decided by the Division Bench of this Court in W.A. No. 98/2002 vide judgment and order dated 22.7.2002 (Annexure-G). The issue also has decided vide Annexure-H judgment and order date d 23.7.2004 reported in (2004) (Supp) GLT 808 (Satya Charan Biswas Vs. State of Assam & Ors.). For a ready reference, Rule 24(2)(iii) of the aforesaid Rules of 2003 is quoted below: 24. Seniority - (1) The inter-se-seniority of the teachers of Graduate cadre an d Post-Graduate cadre in a school shall be considered/determined for filling up the vacancies of Vice-Principal on the basis of- (i) & & & &. (ii) & & & & (iii) & & &.. (iv) & & &.. (2) Seniority for promotion to the post of Head Master/Superintendent/Assistant Head Master/Assistant Superintendent shall be determined on the following basis - (i) & & & &. (ii) & & & & (iii) regarding seniority in respect of H.M., J.P. (Stipendiary) teacher, senior ity shall be counted from the date of regularization in Graduate cadre with effe ct from 1.3.78 vide Govt. letter No. ESS/0/72/468, dated 10.1.78; (iv) & & & &. & & & & & & 5. From the above, what is seen is that the Rule making authority while fix ing the seniority of the teachers in the Graduate cadre appointed under Half a M illion Job Programme simply referred to the Government letter dated 10.1.1978 to wards fixing seniority with effect from 1.3.1978. When the Division Bench judgme nt dated 22.7.2002 was delivered laying down that the teachers appointed under t he said programme would be entitled to count seniority from 1.1.1975, the afores aid circular letter was very much in existent. Thus, the Rule making authority w hile framing the aforesaid Rule of 2003 could not have taken recourse to the sai d circular letter dated 10.1.1978 so as to fix the seniority of the Graduate Tea chers appointed under the said programme with effect from 1.3.1978. To that exte nt, the said provision and the letter dated 10.1.1978 will have to be read down so as to be substituted by the date 1.1.1975. 6. The above aspect of the matter has also been discussed in Satya Charan B iswas (supra), in which the Division Bench judgment referred to above has also b een referred to. In this connection, paragraphs 15 and 17 of the said judgment a re quoted below: 15. Even if the aforesaid Rule of 2003, more particularly Rule 24(2)(iii) with which the present proceeding is concerned is stated to be in force, such a provi sion conferring seniority to the Graduate Teachers appointed under half a Millio n Job Programme w.e.f 1.3.78 is not applicable to the case in hand on two counts viz. (1) the petitioner was appointed under the said programme in the Graduate scale of pay w.e.f. 1.9.73 and his such appointment was regularized w.e.f. 1.1.7 5. Thus the date 1.3.78 stipulated in Rule 24(2)(iii) of the aforesaid rules of 2003 is not applicable to the petitioner. Secondly, the Division Bench of this C ourt in the aforesaid Writ Appeal No. 98/02 has clearly held that the date of re gularization in the graduate Cadre i.e. 1.1.75 pertaining to the Graduate teache rs appointed under Half a Million Programme would be the decisive factor towards counting of seniority. In that case the division Bench held that the respondent who was also appointed under Half a Million Programme would get his seniority f rom the date of his continuous appointment in the Graduate cadre i.e. from 1.1.7 5 with effect from which date his service was regularized. The Division bench de cided the issue by its judgment and order dated 22.7.2002. At that time the prov ision as contained in Rule 24 (2) (iii) of the aforesaid Rules of 2003 was incor porated in the Govt. notification dated 22.1.2001 provided counting of seniority in respect of teachers appointed under Half a Million Job Programme with effect from the date of regularization of service in the Graduate Cadre w.e.f. 1.3.78 vide govt. letter No. ESS.70/72/468 dated 10.1.78. The said decision did not fun d favour with the Division Bench inasmuch as the services of the respondent in t he Writ Appeal who was also appointed under Half a Million Job Programme like th at of the writ petition was regularized in his service w.e.f. 1.1.75. If there w as any other teachers in the Graduate Cadre appointed under the Half a Million J ob Programme whose services were regularized w.e.f. 1.3.78, their seniority may be counted on the basis of the aforesaid Notification and the provision of the R ule 24(2)(iii) but certainly not in the case of the writ petitioner. Otherwise t he law laid down by the Division Bench of this Court could not have been set at naught by incorporating the same very Notification under rule 22 (2)(ii) of the aforesaid Rules of 2003. 17. In the impugned order dated 23.12.2003, the Director of Secondary Education, Assam while admitting that as per the departmental rules and criteria of senior ity towards promotion to the next higher post, same is counted from the date of receiving the Graduate scale of pay and that the petitioner received the same at an earlier point of time than the respondent No. 4, suddenly came to the conclu sion that his seniority for promotion to the next higher post would count w.e.f 1.3.78 without assigning any reason. It was argued on behalf of the respondent N o. 4 that such assignment of seniority to the writ petitioner is on the basis of the aforesaid notification providing counting of seniority of the Graduate teac hers appointed under Half a Million Job Programme. The position has already been discussed above, in reference to the date of regularization of the service of t he petitioner w.e.f. 1.1.75 and the aforesaid decision of the division Bench. In such a situation the seniority of the writ petitioner cannot be arbitrarily cou nted w.e.f. 1.3.78. 7. After the aforesaid Division Bench judgment, the Rule making authority c ould not have taken recourse to the circular letter dated 10.1.1978 so as to fix the seniority of the Graduate Teachers appointed under the particular programme with effect from 1.3.1978. Taking note of the aforesaid Division Bench judgment , the Rule making authority ought to have fixed the seniority of the said teache rs with effect from 1.1.1975. 8. In view of the above, the prayer made in this writ petition is allowed. The fixation of seniority of the Graduate Teachers appointed under Half a Millio n Job Programme with effect from 1.3.1978 stands set aside and quashed and the e ffective date incorporated in Rule 24(2)(iii) i.e. 1.3.1978 shall stand substitu ted with the date 1.1.1975. To that extent, the said Rule stands interfered with . Consequently the impugned Annexure-E order dated 23.6.2010 shall also stands i nterfered with and the matter shall stand remitted back to the Government of Ass am in the Education Department to refix the seniority of the petitioner vis-à-vi s the respondent No. 4 and thereafter to assign the in-charge Principalship to t he senior most teacher in the school. 9. Let the entire exercise be carried out as expeditiously as possible, but at any rate, not later than 31.1.2012. For this limited period, status-quo as o n today in respect of holding of the charge of the post of Principal of the scho ol existing as on today shall be maintained. 10. The writ petition is allowed, without, however, any order as to costs.