Umesh Chandra Bhuyan Vs. State of Assam and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/127685
Subject;Service
CourtGuwahati High Court
Decided OnFeb-27-2008
JudgeB.K. Sharma, J.
AppellantUmesh Chandra Bhuyan
RespondentState of Assam and ors.
DispositionPetition dismissed
Excerpt:
- - ali, learned counsel for the petitioner as well as mr. in this connection, the learned standing counsel, education department as well as mr. that the two schools are quite distinct and separate and the teaching and non-teaching staff are in different cadres, is clearly discernible from the provisions of the said rules. this position will have to be read in the context of the 2003 rules as well as the further provision made in the notification itself. 1728/2006 has been well understood by the official respondents. b.k. sharma, j.1. the dispute raised in the writ petition relates to seniority between the petitioner and the respondent no. 4 and the consequential claim for charge of principal of the school in question.2. the petitioner was first appointed on 20.5.1973, as assistant teacher of tulsibari m.e. school by the managing committee of the school. subsequently his service was regularized with effect from 20.5.1973. the school was provincialised with effect from 1.3.1978 and the petitioner was appointed as the headmaster of the school for a period of three months by an order dated 19.10.1979 issued by the deputy inspector of schools, rangia. thereafter he was allowed to act as headmaster by subsequent orders issued from time to time extending his services. eventually by annexure-c order dated 21.1.1980 his services as headmaster was extended until further order.3. as against the aforesaid position of the petitioner, the respondent no. 4 was first appointed on 20.12.1972 as assistant teacher of a high school called borghuli neheru high school, which was subsequently provincialised with effect from 1.10.1977. the respondent no. 4 was transferred to the school called tulsibari bahumukhi high school by order dated 2.2.1993 issued by the inspector of schools, rangia on the basis of the request made by him. he was so transferred against a newly sanctioned vacant post of science graduate teacher. in the order of transfer it was indicated that such transfer was on own request of the respondent no. 4 and that no ta and da would be admissible for the purpose.4. the respective schools in which of both the incumbents had been working i.e. tulsibari m.e. school and tulsibari bahumukhi h.s. school were amalgamated by annexure-f order dated 14.9.2005. as per the terms and conditions of such amalgamation, all the qualified staff of m.e. school serving against duly sanctioned posts were to be absorbed in the amalgamated high school with effect from the date of amalgamation with their respective pay and prospect, but with amalgamated seniority list. after the amalgamation of the schools to one entity, it came to be known as tulsibari bahumukhi h.s. school. by annexure-g letter dated 21.12.2005 the inspector of schools intimated the principal of the school regarding the resultant conditions of the amalgamation. in the letter, the teaching and non-teaching staff of the amalgamated school were also indicated. while the petitioner was included at serial no. 3 with the designation as vice-principal i/c with date of joining as 20.5.1973, the respondent no. 4 was included at serial no. 19 with date of joining as 1.1.1973. both the incumbents were shown to be in the pay' scale of rs. 3580-8750/-5. placing reliance on the annexure-h guidelines dated 30.8.2001, it is the case of the petitioner that the respondent no. 4 upon his transfer to the present school from his earlier school by the aforesaid order dated 2.2.1993 (annexure-e) would count his seniority in the present school with effect from the date of joining the school. in other words the said respondent cannot count his past service for seniority. taking this date of joining in the new school by the respondent no. 4, it is the case of the petitioner that he is senior to the said respondent.6. with the retirement of the incumbent holding the charge of principal of the school with effect from 28.2.2006 and upon his release, the petitioner was handed over the charge by the said incumbent describing him as the seniormost teacher of the amalgamated school. the petitioner in turn intimated the inspector of schools about his taking over of the charge of principal from the outgoing incumbent. thereafter, formal order dated 27.3.2006 was passed by the director of secondary education, assam allowing the petitioner to hold charge of principal in addition to his normal duties as assistant teacher under fr49(c).7. the respondent no. 4 in the meantime, moved this court by filing the writ petition being wp(c) no. 1728/2006 challenging the action of the outgoing principal i/c of the school in handing over charge to the petitioner. the writ petition was disposed of by order dated 22.3.2006 with the direction to the inspector of schools to verify as to whether the respondent no. 4 joined the school and was given graduate scale of pay earlier than the writ petitioner and if so, the respondent no. 4 should be allowed to continue as principal i/c. the relevant portion of the order dated 22.3.2006 is quoted below:the order passed by the inspector of schools shows that the principal in-charge was directed to hand over charge of his post to the senior-most teacher of the school on 20.2.2006 on his superanuation. it is alleged that the in-charge principal instead of handing over charge to the writ petition who is the senior-most teacher handed over charge to the private respondent no. 5.the statement of seniority of teachers (annexure-vi) shows that the writ petitioner joined the school on 1.1.1973 was given the graduate scale with effect from 1.4.1976, whereas the private respondent no. 5 joined the school on 20.5.1973 and was given the graduate scale of pay with effect from 1.1.1979. prima facie the statement annexed with the writ petition as annexure-vi shows that the writ petitioner is senior to the private respondent.having regard to the above facts which emerge from the materials made available by the petitioner on oath, this petition is disposed of with direction to the inspector of schools, kdc, guwahati to verify as to whether the writ petitioner joined the school and was given graduate scale of pay earlier than the private respondent and, if so, the petitioner shall be allowed to continue as in-charge principal. this exercise shall be completed within a period of 7 days from the day when a copy of this order is furnished to him by the writ petitioner.8. the aforesaid order was passed without issuing notice to the writ petitioner. in fact the writ petition was disposed of at the motion stage itself. after the order so passed by this court, the director of secondary education, assam by his annexure-n order dated 24.7.2006 withdrew the earlier order dated 27.3.2006 (annexure-l) by which the petitioner was allowed to hold charge of principal. by the said order, the inspector of school was also directed to comply with the said order passed by this court. pursuant thereto, the inspector of schools by his annexure-p order dated 29.7.2006 allowed the respondent no. 4 to hold charge of principal of the school. being aggrieved the petitioner, filed the instant writ petition.9. the respondent no. 4 in his affidavit has denied the claim of the petitioner that he is senior to him. as regards the amalgamation of the m.e. school in which the petitioner had been working with that of the school in which the respondent no. 4 had been working, which by the time amalgamation took place stood upgraded as a higher secondary school, the respondent no. 4 has contended that there is no provision for amalgamation of m.e. school with that of h.s. school. in this connection, the respondent no. 4 has placed reliance on the annexure-1 and 2 orders dated 16.7.1983 and 30.8.2005 issued by the government of assam in the education department.10. referring to the annexure-3 letter dated 19.10.05 addressed to the director of secondary education, assam by the then principal of the school, it is the case of the respondent no. 4 that since he has received the graduate scale of pay with effect from 1.4.1973 as against the petitioner's with effect from 19.10.1979, he is senior to the petitioner. as regards the annexure-h guidelines dated 30.8.2001 mentioned above, the respondent no. 4 has contended that the same does not have any retrospective effect and that even otherwise also, his past service before transfer to the present school cannot be obliterated altogether. upon a reference to annexure-4 series orders pertaining to transfer on own request with the stipulation that the incumbents would have no claim for seniority over the existing staff of the school, it is the case of the respondent no. 4 that in his order of transfer, there being no such stipulation, he cannot be made to lose his past service in the earlier school for the purpose of seniority.11. annexure-8istheletterdated4.5.2006 addressed to the director of secondary education, assam by the inspector of schools intimating that the respondent no. 4 was receiving graduate scale of pay earlier than the petitioner. by the said letter it was also intimated that there was no sanctioned post either of assistant headmaster or of vice-principal in the amalgamated school i.e. tulsibari bahumukhi h.s. school. against the aforesaid affidavit-in-opposition filed by the respondent no. 4, the petitioner has filed an affidavit-in-reply reiterating the stand in the writ petition.12. in the additional affidavit filed by the petitioner, the fact that the respondent no. 4 receipt graduate scale of pay with effect from 1.4.1976 and the writ petitioner with effect from 19.10.1979 has been admitted. however, his stand is that since the respondent no. 4 was transferred to the present school by order dated 2.2.1993 and he joined on 5.2.1993, his past service stood obliterated and he would count seniority only with effect from 5.2.1993. placing reliance on annex-ure-3 letter dated 14.5.07, the petitioner has contended that as per the guidelines of education department upon amalgamation of both the schools, the petitioner being the headmaster of the erstwhile m.e. school is entitled to become the assistant headmaster of the amalgamated school and consequently is also entitled to hold the charge of principal of the higher secondary school.13. the official respondents supporting the case of the petitioner have contended in their affidavit that, upon amalgamation of the schools, as per the provisions of the assam secondary education (provincialised) service rules, 2003, the petitioner is entitled to become the assistant headmaster of the amalgamated school. upon a reference to the said rules it is also contended that the seniority of the respondent no. 4 in the present school was counted from the date of joining the school upon transferred from the earlier school.14. i have heard dr. y.k. phukan and mr. a.s. choudhury, learned counsel assisted by mr. r. ali, learned counsel for the petitioner as well as mr. t. islam, learned standing counsel, education department. i have also heard mr. j. abedin, learned counsel representing the respondent no. 4.15. noticing that the official respondents have not responded to the writ proceeding by making their position clear, this court by order dated 7.6.2007 issued direction requiring the said respondents to file affidavit-in-opposition dealing with the contentions raised in the writ petition and also to clarify the following:1. how the seniority is determined among the teachers of the amalgamated me and high/h.s. school?2. whether upon amalgamation, the assistant headmaster of the school is entitled to function as vice principal of the high/h.s. school?3. whether the m.e. school teachers are entitled to graduate scale of pay and even if the headmaster of m.e. school is entitled to graduate scale of pay, whether that will count towards seniority in the graduate cadre upon amalgamation of m.e. school with that of high/h.s. school?4. what is the required qualification for being appointed/promoted as principal of high/ h/s/school?5. the respondents shall also clarify as to whether there is any rule and/or executive instruction towards amalgamation of m.e. school with that of high/h.s. school.6. whether there is any sanctioned post of vice-principal in the school where the petitioner is allowed to hold the charge of the vice-principal?7. the view of the govt. in the matter of transfer of the respondent no. 4 way back in 1993, as to whether upon such transfer of the respondent no. 4, he would lose seniority and if so, under what rules?8. the respondents shall also indicate the pay scale of m.e. school and high/h.s. school teachers in different cadre.16. the respondents no. 1 and 2 i.e. the commissioner & secretary, education and the dse, assam have filed the affidavits only after the aforesaid directions of this court. in the affidavit they have referred to the guideline dated 16.7.1983 relating to the amalgamation of m.e. school with high school situated in the same campus. as per the said guideline, in consideration of the administrative experience gained by the headmaster of m.e. school, he shall be considered for appointment as assistant headmaster of the amalgamated school subject to the following conditions:i. he has necessary academic qualification.ii. he has served as headmaster of m.e. schools for a minimum period of 10 years. for a founder headmaster of m.e. schools, the minimum period should be 5 years.iii. he was not assistant teacher in the h.e. school with which the m.e. school is amalgamated prior to joining as headmaster of the m.e. school.iv. in all other cases, the adhoc appointment of the assistant headmaster of the amalgamated institution shall be in accordance with seniority as graduate in h.e. schools. the adhoc appointment to the post of assistant headmaster of amalgamated institution shall have no right whatever for appointment as assistant headmaster of amalgamated school unless selected duly, when the process of selection take place.17. dealing with the further queries made by order dated 7.6.2007, further clarifications made in the affidavits are that upon upgradation of high school to higher secondary school, the existing headmaster is entitled to function as vice-principal of the same school as the post of headmaster and assistant headmaster are abolished with the creation of the post of principal and vice-principal in the upgraded higher secondary school. upon a reference to government circular dated 19.10.2005 and rule 14 of the assam secondary education (provincialised) service rules, 2003, it has been stated in the affidavits that the headmaster of the m.e. school with graduate degree is to be designated as assistant headmaster (academic) of the amalgamated high school.18. in the affidavits, further stand of the respondents is that there is a sanctioned post of vice-principal in the amalgamated school and the petitioner was allowed to hold charge of the same. as regards the seniority of the respondent no. 4, it has been stated that since he was transferred on his own request, as per rule 24 of the aforesaid rules of 2003, he cannot claim his past service towards seniority and his seniority will be counted from the date of joining the school. as regards the pay scale of headmaster of m.e. school and assistant teacher of higher secondary school, same is stated to be rs. 3580--8750/-.19. from the above stand in the affidavits, which the respondents have projected in response to the aforesaid order dated 7.6.2007, what has emerged is that the respondent no. 4 is not entitled to count his seniority from his initial date of appointment in another school, but is entitled to count his seniority from the date of joining in the present school and that the petitioner being the headmaster of the m.e. school is entitled to act as assistant headmaster of the amalgamated school.20. as regards the plea of the petitioner that the respondent no. 4 cannot count his seniority from his initial date of appointment in another school, which is 20.12.1972 and that upon his transfer to the erstwhile borghuli neheru high school (since upgraded as higher secondary school), in 1993 by order dated 2.2.1993, which school he joined on 5.2.1993, his seniority will be counted only with effect from 5.2.1993, same will have to be considered taking into account the fact that the petitioner himself was in another school lower in rank and status. his existence in the amalgamated of h.s. school came into being upon amalgamation the m.e. school with that the h.s. school only in 2005, when both the schools were amalgamated by annexure-g order dated 21.12.2005. it is in this context, learned counsel for the respondent no. 4 argued that the petitioner has no locus standi to make any grievance against the seniority of the respondent no. 4 in the high school, which according to him, is to be counted from the initial date of appointment and not from the date of joining the new school.21. at the time, when the respondent no. 4 was transferred to the present school, which at that time was a high school, which was later on upgraded as higher secondary school, the petitioner was no where in the picture, he being in the services of another school and that too an m.e. school, lower in rank and status than that of a high school. at that relevant point of time, the rules holding the field governing the service conditions of the high school was assam secondary education (provincialised) service rules, 1982 framed under section 3 (3) of the assam education (provincialisation) act, 1977. on the other hand the m.e. schools are governed by different sets of act and rules. in this connection, the learned standing counsel, education department as well as mr. abedin learned counsel for the respondent no. 4 have referred to assam elementary education (provincialisation) act, 1974 and the assam elementary education (provincialisation) rules, 1977. that being the position, the petitioner, an m.e. school teacher, who subsequently act as headmaster of the m.e. school was altogether in a different service and cadre, unlike the respondent no. 4, who was in the cadre of graduate teacher (grade-fv) under rule 3 of the aforesaid rules of 1982.22. the assam secondary education (middle english schools and high schools) (provicnialisation) rules 1979 envisages separate eligibility for provincialisation of high schools and m.e. schools. that the two schools are quite distinct and separate and the teaching and non-teaching staff are in different cadres, is clearly discernible from the provisions of the said rules. when there is requirement of graduate teachers in the high school, there is no such requirement in m.e. schools. only exception is that the headmaster of the m.e. school should be a graduate relaxable upto intermediate, p.u. (two years). further, the procedure formulated laid down under section 27 (1) of the assam elementary education (provincialisation) act, 1974, the post of headmaster of m.e. schools shall be promotional posts to be filled up on the basis of selection. the educational qualification prescribed is atleast matric/hslc, normal or atleast intermediate or its equivalent or above. particular period of training is also prescribed.23. as per the provisions of the aforesaid rules of 1982 (rule 13), inter-se seniority of the existing employees in the respective cadre shall be determined in relation to (a) date of continuous appointment (b) date of joining and (c) date of birth. unlike the present set of rules of 2003, in the said rules of 1982, there was no concept of school wise seniority and it was the cadre seniority irrespective of any transfer from one school to another.24. learned counsel representing the parties to this proceeding have admitted that the rules of 2003 has no retrospective application. if that be so, at the time of transfer of the respondent no. 4 in 1993, the rules of 1982 was holding the field. consequently, his seniority was to be determined on the basis of the said set of rules and not under the new set of rules of 2003. unlike rule 24 (2) (v) of the rules of 2003, which specifically provides that a teacher, on transfer on his own request from one school to anther will get his seniority in the new school from the date of joining on transfer, the earlier set of rules i.e. 1982 rules had no such provisions inasmuch as it was the cadre seniority as a whole and not school wise seniority.25. apart from the above, the respondent no. 4 although was transferred on his own request by annexure-e order dated 2.2.1993 and no provision was made for ta and da, that by itself cannot lead to the inference that the respondent no. 4 had foregone his seniority. even if any request is made for transfer, unless it is made known to the incumbent that upon acceptance of such request he would lose his past seniority and the incumbent accepts such a condition and the same is also reflected in the order of transfer, later on the authority cannot say that the past service rendered by the incumbent stands altogether obliterated for the purpose of seniority. it is in this context, learned counsel for the respondent no. 4 has referred to the decision of this court reported in 2007 (2) glt329 (sujit paul v. state of assam and ors.26. the division bench of this court in 2006 suppl. (1) glt 493 (abdul matin talukdar v. haricharan medhi) decided on 3.11.2006 has held that the rules of 2003 has no retrospective application. it has also been held that only because the transfer order did mention about non-entitlement of ta and da for the purpose, the conclusion cannot be to the effect that the transfer was on the own request of the incumbent. it is true that in the order of transfer of the respondent no. 4, it was mentioned that such transfer was on the basis of his own request, but nothing has been shown that the respondent no. 4 agreed for loss of his seniority. the order also did not indicate that the respondent no. 4 upon his transfer on own request would not be entitled to count his past service. this aspect of the matter will also have to be considered in the context of the 1982 rules, which was prevalent at that point of time.27. learned counsel for the petitioner has placed reliance on the decision of the apex court reported in : air2006sc2138 (k.p. sudhakaran v. state of kerala). he has also placed reliance on the decision of this court reported in 2002 (1) glt 216 (rais uddin v. state of assam). in the case before the apex court, there was definite set of rule providing loss of seniority on transfer from one department to another affected on own request, unlike the present case in which under 1982 rules there was no such provision. in the second case, the learned counsel for both the parties submitted that the rules were silent in the matter of seniority on request transfer.28. the position of the 1982 rules was not brought to the notice of the court. it was also found from the record that the transfer was not on public demand as was alleged. in the instant case, no records have been produced. further, as noted above it is only rule 24 of the 2003 rules, which specifically provides loss of seniority on request transfer, which was not the position under 1982 rules. however, at that time the annexure-h guidelines dated 30.8.2001 issued by the director of secondary education, assam relating to fixation of seniority was in existence, which provided such a clause as in the 2003 rules. as in the case of 2003 rules, the said guidelines also did not have any retrospective application. the division bench of this court in the aforesaid w.a. no. 448/2003 has discussed this aspect of the matter. rule 24 of the 2003 rules does not indicate the manner and method in which the seniority of the teachers of the m.e. school is to be determined upon amalgamation of the same with that of high or higher secondary school. in the order of amalgamation also, there was no indication regarding determination of seniority of the m.e. school teachers. annexure-f order dated 26.9.2005 pertaining to amalgamation of the schools only spoke of absorption of the qualified staff of the m.e. school with effect from the date of amalgamation with their respective pay and prospect, but with amalgamated seniority list. if the m.e. school teachers are in a different cadre than that of the high school teachers, naturally the question arises as to whether upon amalgamation they would be entitled to count seniority from their initial date of appointment in the higher cadre. the official respondents have not highlighted this aspect of the matter.29. when there is a merger of two or more establishments or integration of two or more cadres the inter se seniority amongst the employees in the merged establishment or the integrated cadre has to be determined on some rational principle. the mere fact that some hardship has been caused to members who are integrated will not render such a rule for determination of seniority invalid. in service law 'cadre' means the strength of a service or a part of a service sanctioned as a separate unit. there may be a single cadre or more than one cadre in a service. an employer has a right to merge or integrate different cadres into one single cadre or to split a single cadre into different cadres for rationalizing administration.30. the merger results in fusion of the two cadres into one single cadre. the rules or administrative orders which bring about integration might provide for the principles and manner in which the seniority of the integrated employees are to be determined. needless to say such rules or orders must pass the test of constitutionality which particularly implies that they must be based on some fair, just and rational principle. if the service rendered by the employees who are merged is wholly ignored it would be most unjust. equally, it would be unjust to employees with whom the merger takes effect, if the entire service of those who are being merged are taken into account when they belonged to a lower or inferior grade or cadre. it would also be discriminatory if after the merger of two cadres e.g. junior service and senior service, the members of the junior ground are given retrospective appointment from a date prior to the dates of appointments of the direct recruits in the senior service.31. according to the respondents, the petitioner is entitled to be promoted. as per notification dated 19.10.2005 and the rules of 2003, a headmaster of the m.e. school having minimum qualification of graduation is entitled to function as assistant headmaster (academic) of the amalgamated high school. the notification also provides that the inter-se seniority of the teachers of the amalgamated high school will be from their respective date of receipt of graduate scale. on the other hand rule 14(3) of the 2003 rules only provides that in case of amalgamated high school, the headmaster of the m.e. school will be eligible for selection as assistant headmaster of the amalgamated school subject to the conditions laid down therein.32. from the above, it will be seen that upon amalgamation of m.e. school with that of high school, the headmaster of the m.e. school cannot automatically become the assistant headmaster of the amalgamated school. rule 14 of the 2003 rules does not provide for the same. it is only the aforesaid 2005 notification, which makes the provision for allowing the headmaster of the m.e. school to function as assistant headmaster (academic) in the amalgamated school. this position will have to be read in the context of the 2003 rules as well as the further provision made in the notification itself. as per the further provision in the notification, the inter-se seniority of the teachers of the amalgamated high school will be from their respective date of receipt of graduate scale.33. apart from the fact that the aforesaid notification dated 19.10.2005 cannot override the statutory provisions, as noted above, same will also have to be read in the context of the further provision relating to inter-se seniority of the teachers made in the notification itself. there is no dispute that it is the respondent no. 4 who is senior to the petitioner in respect of receipt of graduate scale of pay, which is 1.4.1973 and 19.10.1979 respectively. if that be so, irrespective of the question of cadre etc., the respondent no. 4, as per the said notification, is senior to the petitioner.34. the aforesaid notification dated 19.10.2005 allows the headmaster of m.e. school to function as assistant headmaster of the amalgamated high school subject to the condition that the incumbent has minimum qualification of graduation. this is contrary to rule 12, 13 and 14 of the aforesaid rules of 2003 read together. as per rule 14 the post of vice-principal shall be filled up by promotion on the basis of combineds seniority in the school among graduate and postgraduate teachers having minimum prescribed length of service. the minimum qualification prescribed for headmaster is graduate with b.t. or b.ed degree. the post of principal, vice-principal, post graduate teacher and headmasters are in the class-ii (senior). the petitioner is only graduate without the degree of b.t. or b.ed. on the other hand the respondent no. 4 is b.sc. with b.ed degree. the prescribed educational qualification could not have been relaxed and/or done away with by the aforesaid notification dated 19.10.2005.35. another important aspect of the matter is that neither the aforesaid notification nor the rules of 2003 has made any provision for amalgamation of m.e. school with that of a higher secondary school and as to the consequence thereof. the provisions are only in respect of amalgamation of m.e. school with that of high school and not with higher secondary school. the provision relating to allowing the headmaster of the m.e. school to act in a particular petition in the amalgamated school is also only as assistant headmaster (academic) and not as vice-principal for filling up of which there is distinct and elaborate procedure. the petitioner only on the strength of allowing him to act as headmaster of the m.e. school (he has not been promoted as regular headmaster) was allowed to act as the vice-principal of the school. this position will have to be understood in the context of the post of assistant headmaster and vice-principal are in two different and distinct cadres. further as per annexure-8 letter dated 4.5.2006 annexed to the counter affidavit filed by the respondent no. 4, there is also no sanctioned post of assistant headmaster or the vice-principal in the amalgamated h.s. school. if that be so, it is not understood as to how the petitioner could be entertained as vice principal in-charge.36. the present controversy is as to who will hold the charge of principal being the seniormost teacher of the school. the outgoing principal of the school handed over the petitioner with the charge on his retirement with effect from 28.2.2006. same was followed by the annexure-l order dated 27.3.2006 issued by director of secondary education, assam allowing the petitioner to hold the charge of principal. thus the charge was given to the petitioner considering him to be the seniormost teacher of the school. prior to the order dated 27.3.2006, the respondent no. 4 had approached this court by filing the writ petition being wp(c) no. 1728/ 2006 with the prayer for allowing him to hold the charge being the seniormost teacher of the school. in this connection, he referred to annexure-5 and 6 letters dated 19.10.2005 and 26.2.2006 addressed to the director of secondary education, assam and the inspector of schools by the then principal of the school.37. by annexure-5 letter dated 19.10.2005, the principal of the amalgamated school forwarded the lists of teaching and non-teaching staff of high school section and the m.e. section separately. by an-nexure-6 letter dated 26.2.2006 while furnishing the statement of seniority, the respondent no. 4 was shown at serial no. 2, while the petitioner was shown at serial no. 4. the writ petition was disposed of by order dated 22.3.2006 with the following direction:having regard to the above facts which emerge from the materials made available by the petitioner on oath, this petition is disposed of with direction to the inspector of schools, kdc, guwahati to verify as to whether the writ petitioner joined the school and was given graduate scale of pay earlier than the private respondent and, if so, the petitioner shall be allowed to continue as in-charge principal. this exercise shall be completed within a period of 7 days from the day when a copy of this order is furnished to him by the writ petitioner.38. being aggrieved by the said order, which was ex-parte against the petitioner, he filed review petition being r.p. no. 68/2006 urging the same very grounds as have been urged in this writ petition. the prayer made in the review petition was to review the said order dated 22.3.2006, re-hear and re-examine the matter afresh and to dismiss the writ petition. the review petition was never admitted and was dismissed by order dated 7.8.2006 on withdrawal. such withdrawal was without any liberty to file writ petition and/or to pursue any other remedy. the question necessarily arises as to whether the petitioner after filing the review petition assailing the legality and/or validity of the order passed by this court in the writ petition filed by the respondent no. 4 and withdrawing the same without any reservation, could have filed the instant writ petition on the same very grounds.39. at the time of filing the instant writ petition on 2.8.2006, the review petition filed by the petitioner, was very much pending, but was withdrawn on 7.8.2006, on which date, the writ petition was entertained. it is not known as to whether the fact of withdrawal of the review petition was brought to the notice of the court. be that as it may, the direction of this court in the aforesaid writ petition has attained its finality, there being no challenge to the same. as per the said direction, if the respondent no. 4 joined the school and' was given graduate scale of pay earlier than the petitioner, the respondent no. 4 should be allowed to hold charge of principal.40. there is no dispute that the respondent no. 4 received graduate scale of pay much earlier than the petitioner. that apart, if by virtue of receiving graduate scale of pay by the petitioner, irrespective of his service in the m.e. school, if it is held that he was included in the graduate cadre, than also, as per the cadre seniority, the respondent no. 4 would rank senior to him. this will lead to the second condition of joining the school at the earlier point of time. it is in this context, the petitioner has raised the plea of loss of seniority upon joining of the school by the respondent no. 4 in 1993 by virtue of his transfer from the earlier school and joining the present school on his own request. the consequence of such joining by the respondent no. 4 has been discussed above and it is my considered view that the respondent no. 4 cannot be made to forego his seniority from the initial date of joining the graduate cadre in another school and that too at the instance of the petitioner, who at that time was working in anther school, lower in rank and status.41. the aforesaid plea will also have to be judged keeping in mind that at the time of transfer of the respondent no. 4 in 1993, the petitioner was nowhere in the picture and thus naturally he had no existing right. after 12 years of the transfer of the respondent no. 4, the m.e. school was amalgamated with the higher secondary school. no other existing teacher of the high school, since upgraded as higher secondary school made any grievance against counting of seniority of the respondent no. 4 taking into account his earlier service in another school. it is the petitioner, who after coming to the school upon amalgamation, has raised the issue only to make out a point to favour his case. in the process, he has conveniently forgotten his own condition in which he also came to the amalgamated higher secondary school by virtue of merger of the m.e. school.42. as noticed above, the petitioner was not a regularly selected and appointed headmaster of the m.e. school. initially he was allowed to function as headmaster of the school for a limited period of three months and thereafter he was allowed to continue until further order with the condition that such appointment was terminable at any point of time without assigning any reason thereof. thus, here is a case in which the petitioner who was simply allowed to function as the headmaster of the m.e. school, upon amalgamation of the same with that of the h.s. school was first allowed to function as vice-principal in-charge and thereafter as principal in-charge ignoring the claim of the respondent no. 4 an existing teacher of the h.s. school and senior to the petitioner.43. further, the aforesaid order dated 22.3.2006 passed in wp (c) no. 1728/2006 has been well understood by the official respondents. consequently by the impugned order dated 29.7.2006 (annexure-p), the respondent no. 4 was allowed to hold the charge of principal. however, during the pendency of the writ petition and when there was no stay order operating in favour of the writ petitioner and thus the order dated 29.7.2006 was very much in existence, the director of secondary education, assam without superseding the said order passed by himself, issued another order dated 1.9.2006 (annexure-a to misc. case no. 914/2007) allowing the inspector of schools to exercise financial power. that order was followed by annexure-b order dated 11.9.2006 passed by the assistant inspector of schools allowing the petitioner to act as academic in-charge of the school. that order of the assistant inspector of schools was in clear violation of the order of the director of secondary education,44. during the course of hearing, when the aforesaid position was brought to the notice of this court, this court by order dated 14.3.2007 directed the learned standing counsel, education department to obtain instruction so as to furnish clarification as to how the aforesaid two orders could be passed during the pendency of the writ petition. however, till conclusion of the hearing of the case, learned standing counsel could not furnish any instruction. in the meantime, an order was passed on 11.5.2007 to maintain status-quo as on that date.45. for all the aforesaid reasons, discussions and conclusions, the writ petition merits dismissal, which i accordingly do. the respondent no. 4 being senior to the petitioner shall continue to hold the charge of principal in terms of the impugned order dated 29.7.2006 (annexure-p) till such time, the post of principal is filled up through regular process of selection.46. the writ petition is dismissed leaving the parties to bear their own costs.
Judgment:

B.K. Sharma, J.

1. The dispute raised in the writ petition relates to seniority between the petitioner and the respondent No. 4 and the consequential claim for charge of Principal of the school in question.

2. The petitioner was first appointed on 20.5.1973, as Assistant Teacher of Tulsibari M.E. School by the Managing Committee of the school. Subsequently his service was regularized with effect from 20.5.1973. The school was provincialised with effect from 1.3.1978 and the petitioner was appointed as the Headmaster of the school for a period of three months by an order dated 19.10.1979 issued by the Deputy Inspector of Schools, Rangia. Thereafter he was allowed to act as Headmaster by subsequent orders issued from time to time extending his services. Eventually by Annexure-C order dated 21.1.1980 his services as Headmaster was extended until further order.

3. As against the aforesaid position of the petitioner, the respondent No. 4 was first appointed on 20.12.1972 as Assistant Teacher of a High School called Borghuli Neheru High School, which was subsequently provincialised with effect from 1.10.1977. The respondent No. 4 was transferred to the school called Tulsibari Bahumukhi High School by order dated 2.2.1993 issued by the Inspector of Schools, Rangia on the basis of the request made by him. He was so transferred against a newly sanctioned vacant post of Science Graduate Teacher. In the order of transfer it was indicated that such transfer was on own request of the respondent No. 4 and that no TA and DA would be admissible for the purpose.

4. The respective schools in which of both the incumbents had been working i.e. Tulsibari M.E. School and Tulsibari Bahumukhi H.S. School were amalgamated by Annexure-F order dated 14.9.2005. As per the terms and conditions of such amalgamation, all the qualified staff of M.E. School serving against duly sanctioned posts were to be absorbed in the amalgamated High School with effect from the date of amalgamation with their respective pay and prospect, but with amalgamated seniority list. After the amalgamation of the schools to one entity, it came to be known as Tulsibari Bahumukhi H.S. School. By Annexure-G letter dated 21.12.2005 the Inspector of Schools intimated the Principal of the school regarding the resultant conditions of the amalgamation. In the letter, the teaching and non-teaching staff of the amalgamated school were also indicated. While the petitioner was included at serial No. 3 with the designation as Vice-principal i/c with date of joining as 20.5.1973, the respondent No. 4 was included at serial No. 19 with date of joining as 1.1.1973. Both the incumbents were shown to be in the pay' scale of Rs. 3580-8750/-

5. Placing reliance on the Annexure-H guidelines dated 30.8.2001, it is the case of the petitioner that the respondent No. 4 upon his transfer to the present school from his earlier school by the aforesaid order dated 2.2.1993 (Annexure-E) would count his seniority in the present school with effect from the date of joining the school. In other words the said respondent cannot count his past service for seniority. Taking this date of joining in the new school by the respondent No. 4, it is the case of the petitioner that he is senior to the said respondent.

6. With the retirement of the incumbent holding the charge of Principal of the school with effect from 28.2.2006 and upon his release, the petitioner was handed over the charge by the said incumbent describing him as the seniormost teacher of the amalgamated school. The petitioner in turn intimated the Inspector of Schools about his taking over of the charge of Principal from the outgoing incumbent. Thereafter, formal order dated 27.3.2006 was passed by the Director of Secondary Education, Assam allowing the petitioner to hold charge of Principal in addition to his normal duties as Assistant Teacher under FR49(c).

7. The respondent No. 4 in the meantime, moved this Court by filing the writ petition being WP(C) No. 1728/2006 challenging the action of the outgoing Principal i/c of the school in handing over charge to the petitioner. The writ petition was disposed of by order dated 22.3.2006 with the direction to the Inspector of Schools to verify as to whether the respondent No. 4 joined the school and was given Graduate Scale of pay earlier than the writ petitioner and if so, the respondent No. 4 should be allowed to continue as Principal i/c. The relevant portion of the order dated 22.3.2006 is quoted below:

The order passed by the Inspector of Schools shows that the Principal In-charge was directed to hand over charge of his post to the senior-most teacher of the school on 20.2.2006 on his superanuation. It is alleged that the In-charge Principal instead of handing over charge to the writ petition who is the senior-most teacher handed over charge to the private respondent No. 5.

The statement of seniority of teachers (Annexure-VI) shows that the writ petitioner joined the school on 1.1.1973 was given the graduate scale with effect from 1.4.1976, whereas the private respondent No. 5 joined the school on 20.5.1973 and was given the graduate scale of pay with effect from 1.1.1979. Prima facie the statement annexed with the writ petition as Annexure-VI shows that the writ petitioner is senior to the private respondent.

Having regard to the above facts which emerge from the materials made available by the petitioner on oath, this petition is disposed of with direction to the Inspector of Schools, KDC, Guwahati to verify as to whether the writ petitioner joined the school and was given graduate scale of pay earlier than the private respondent and, if so, the petitioner shall be allowed to continue as In-charge Principal. This exercise shall be completed within a period of 7 days from the day when a copy of this order is furnished to him by the writ petitioner.

8. The aforesaid order was passed without issuing notice to the writ petitioner. In fact the writ petition was disposed of at the motion stage itself. After the order so passed by this Court, the Director of Secondary Education, Assam by his Annexure-N order dated 24.7.2006 withdrew the earlier order dated 27.3.2006 (Annexure-L) by which the petitioner was allowed to hold charge of Principal. By the said order, the Inspector of School was also directed to comply with the said order passed by this Court. Pursuant thereto, the Inspector of Schools by his Annexure-P order dated 29.7.2006 allowed the respondent No. 4 to hold charge of Principal of the school. Being aggrieved the petitioner, filed the instant writ petition.

9. The respondent No. 4 in his affidavit has denied the claim of the petitioner that he is senior to him. As regards the amalgamation of the M.E. School in which the petitioner had been working with that of the school in which the respondent No. 4 had been working, which by the time amalgamation took place stood upgraded as a Higher Secondary school, the respondent No. 4 has contended that there is no provision for amalgamation of M.E. School with that of H.S. School. In this connection, the respondent No. 4 has placed reliance on the Annexure-1 and 2 orders dated 16.7.1983 and 30.8.2005 issued by the Government of Assam in the Education Department.

10. Referring to the Annexure-3 letter dated 19.10.05 addressed to the Director of Secondary Education, Assam by the then Principal of the school, it is the case of the respondent No. 4 that since he has received the Graduate Scale of pay with effect from 1.4.1973 as against the petitioner's with effect from 19.10.1979, he is senior to the petitioner. As regards the Annexure-H guidelines dated 30.8.2001 mentioned above, the respondent No. 4 has contended that the same does not have any retrospective effect and that even otherwise also, his past service before transfer to the present school cannot be obliterated altogether. Upon a reference to Annexure-4 series orders pertaining to transfer on own request with the stipulation that the incumbents would have no claim for seniority over the existing staff of the school, it is the case of the respondent No. 4 that in his order of transfer, there being no such stipulation, he cannot be made to lose his past service in the earlier school for the purpose of seniority.

11. Annexure-8istheletterdated4.5.2006 addressed to the Director of Secondary Education, Assam by the Inspector of Schools intimating that the respondent No. 4 was receiving Graduate Scale of pay earlier than the petitioner. By the said letter it was also intimated that there was no sanctioned post either of Assistant Headmaster or of Vice-principal in the amalgamated school i.e. Tulsibari Bahumukhi H.S. School. Against the aforesaid affidavit-in-opposition filed by the respondent No. 4, the petitioner has filed an affidavit-in-reply reiterating the stand in the writ petition.

12. In the additional affidavit filed by the petitioner, the fact that the respondent No. 4 receipt graduate scale of pay with effect from 1.4.1976 and the writ petitioner with effect from 19.10.1979 has been admitted. However, his stand is that since the respondent No. 4 was transferred to the present school by order dated 2.2.1993 and he joined on 5.2.1993, his past service stood obliterated and he would count seniority only with effect from 5.2.1993. Placing reliance on Annex-ure-3 letter dated 14.5.07, the petitioner has contended that as per the guidelines of Education Department upon amalgamation of both the schools, the petitioner being the Headmaster of the erstwhile M.E. School is entitled to become the Assistant Headmaster of the amalgamated school and consequently is also entitled to hold the charge of Principal of the Higher Secondary School.

13. The official respondents supporting the case of the petitioner have contended in their affidavit that, upon amalgamation of the schools, as per the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003, the petitioner is entitled to become the Assistant Headmaster of the amalgamated school. Upon a reference to the said rules it is also contended that the seniority of the respondent No. 4 in the present school was counted from the date of joining the school upon transferred from the earlier school.

14. I have heard Dr. Y.K. Phukan and Mr. A.S. Choudhury, learned Counsel assisted by Mr. R. Ali, learned Counsel for the petitioner as well as Mr. T. Islam, learned Standing Counsel, Education Department. I have also heard Mr. J. Abedin, learned Counsel representing the respondent No. 4.

15. Noticing that the official respondents have not responded to the writ proceeding by making their position clear, this Court by order dated 7.6.2007 issued direction requiring the said respondents to file affidavit-in-opposition dealing with the contentions raised in the writ petition and also to clarify the following:

1. How the seniority is determined among the teachers of the amalgamated ME and High/H.S. School?

2. Whether upon amalgamation, the Assistant Headmaster of the school is entitled to function as Vice Principal of the High/H.S. School?

3. Whether the M.E. School teachers are entitled to graduate scale of pay and even if the Headmaster of M.E. School is entitled to graduate scale of pay, whether that will count towards seniority in the graduate cadre upon amalgamation of M.E. school with that of High/H.S. school?

4. What is the required qualification for being appointed/promoted as Principal of High/ H/S/School?

5. The respondents shall also clarify as to whether there is any rule and/or executive instruction towards amalgamation of M.E. school with that of High/H.S. School.

6. Whether there is any sanctioned post of Vice-Principal in the school where the petitioner is allowed to hold the charge of the Vice-Principal?

7. The view of the Govt. in the matter of transfer of the respondent No. 4 way back in 1993, as to whether upon such transfer of the respondent No. 4, he would lose seniority and if so, under what rules?

8. The respondents shall also indicate the pay scale of M.E. school and High/H.S. School teachers in different cadre.

16. The respondents No. 1 and 2 i.e. the Commissioner & Secretary, Education and the DSE, Assam have filed the affidavits only after the aforesaid directions of this Court. In the affidavit they have referred to the guideline dated 16.7.1983 relating to the amalgamation of M.E. school with High School situated in the same campus. As per the said guideline, in consideration of the administrative experience gained by the Headmaster of M.E. School, he shall be considered for appointment as Assistant Headmaster of the amalgamated school subject to the following conditions:

I. He has necessary academic qualification.

II. He has served as Headmaster of M.E. schools for a minimum period of 10 years. For a founder Headmaster of M.E. Schools, the minimum period should be 5 years.

III. He was not Assistant Teacher in the H.E. school with which the M.E. school is amalgamated prior to joining as Headmaster of the M.E. School.

IV. In all other cases, the adhoc appointment of the Assistant Headmaster of the amalgamated institution shall be in accordance with seniority as graduate in H.E. schools. The adhoc appointment to the post of Assistant Headmaster of amalgamated institution shall have no right whatever for appointment as Assistant Headmaster of amalgamated school unless selected duly, when the process of selection take place.

17. Dealing with the further queries made by order dated 7.6.2007, further clarifications made in the affidavits are that upon upgradation of High School to Higher Secondary School, the existing Headmaster is entitled to function as Vice-Principal of the same school as the post of Headmaster and Assistant Headmaster are abolished with the creation of the post of Principal and Vice-Principal in the upgraded Higher Secondary School. Upon a reference to Government circular dated 19.10.2005 and Rule 14 of the Assam Secondary Education (Provincialised) Service Rules, 2003, it has been stated in the affidavits that the Headmaster of the M.E. School with graduate degree is to be designated as Assistant Headmaster (Academic) of the amalgamated High School.

18. In the affidavits, further stand of the respondents is that there is a sanctioned post of Vice-Principal in the amalgamated school and the petitioner was allowed to hold charge of the same. As regards the seniority of the respondent No. 4, it has been stated that since he was transferred on his own request, as per Rule 24 of the aforesaid rules of 2003, he cannot claim his past service towards seniority and his seniority will be counted from the date of joining the school. As regards the pay scale of Headmaster of M.E. School and Assistant Teacher of Higher Secondary School, same is stated to be Rs. 3580--8750/-.

19. From the above stand in the affidavits, which the respondents have projected in response to the aforesaid order dated 7.6.2007, what has emerged is that the respondent No. 4 is not entitled to count his seniority from his initial date of appointment in another school, but is entitled to count his seniority from the date of joining in the present school and that the petitioner being the Headmaster of the M.E. School is entitled to act as Assistant Headmaster of the amalgamated school.

20. As regards the plea of the petitioner that the respondent No. 4 cannot count his seniority from his initial date of appointment in another school, which is 20.12.1972 and that upon his transfer to the erstwhile Borghuli Neheru High School (since upgraded as Higher Secondary School), in 1993 by order dated 2.2.1993, which school he joined on 5.2.1993, his seniority will be counted only with effect from 5.2.1993, same will have to be considered taking into account the fact that the petitioner himself was in another school lower in rank and status. His existence in the amalgamated of H.S. School came into being upon amalgamation the M.E. School with that the H.S. School only in 2005, when both the schools were amalgamated by Annexure-G order dated 21.12.2005. It is in this context, learned Counsel for the respondent No. 4 argued that the petitioner has no locus standi to make any grievance against the seniority of the respondent No. 4 in the High School, which according to him, is to be counted from the initial date of appointment and not from the date of joining the new school.

21. At the time, when the respondent No. 4 was transferred to the present school, which at that time was a High School, which was later on upgraded as Higher Secondary School, the petitioner was no where in the picture, he being in the services of another school and that too an M.E. School, lower in rank and status than that of a High School. At that relevant point of time, the rules holding the field governing the service conditions of the High School was Assam Secondary Education (Provincialised) Service Rules, 1982 framed under Section 3 (3) of the Assam Education (Provincialisation) Act, 1977. On the other hand the M.E. Schools are governed by different sets of Act and Rules. In this connection, the learned Standing Counsel, Education Department as well as Mr. Abedin learned Counsel for the respondent No. 4 have referred to Assam Elementary Education (Provincialisation) Act, 1974 and the Assam Elementary Education (Provincialisation) Rules, 1977. That being the position, the petitioner, an M.E. School teacher, who subsequently act as Headmaster of the M.E. School was altogether in a different service and cadre, unlike the respondent No. 4, who was in the cadre of graduate teacher (Grade-FV) under Rule 3 of the aforesaid Rules of 1982.

22. The Assam Secondary Education (Middle English Schools and High Schools) (Provicnialisation) Rules 1979 envisages separate eligibility for provincialisation of High Schools and M.E. Schools. That the two schools are quite distinct and separate and the teaching and non-teaching staff are in different cadres, is clearly discernible from the provisions of the said Rules. When there is requirement of graduate teachers in the High School, there is no such requirement in M.E. Schools. Only exception is that the Headmaster of the M.E. School should be a graduate relaxable upto intermediate, P.U. (two years). Further, the procedure formulated laid down under Section 27 (1) of the Assam Elementary Education (Provincialisation) Act, 1974, the post of Headmaster of M.E. Schools shall be promotional posts to be filled up on the basis of selection. The educational qualification prescribed is atleast Matric/HSLC, Normal or atleast Intermediate or its equivalent or above. Particular period of training is also prescribed.

23. As per the provisions of the aforesaid Rules of 1982 (Rule 13), inter-se seniority of the existing employees in the respective cadre shall be determined in relation to (a) date of continuous appointment (b) date of joining and (c) date of birth. Unlike the present set of Rules of 2003, in the said Rules of 1982, there was no concept of school wise seniority and it was the cadre seniority irrespective of any transfer from one school to another.

24. Learned Counsel representing the parties to this proceeding have admitted that the Rules of 2003 has no retrospective application. If that be so, at the time of transfer of the respondent No. 4 in 1993, the Rules of 1982 was holding the field. Consequently, his seniority was to be determined on the basis of the said set of Rules and not under the new set of Rules of 2003. Unlike Rule 24 (2) (v) of the Rules of 2003, which specifically provides that a teacher, on transfer on his own request from one school to anther will get his seniority in the new school from the date of joining on transfer, the earlier set of Rules i.e. 1982 Rules had no such provisions inasmuch as it was the cadre seniority as a whole and not school wise seniority.

25. Apart from the above, the respondent No. 4 although was transferred on his own request by Annexure-E order dated 2.2.1993 and no provision was made for TA and DA, that by itself cannot lead to the inference that the respondent No. 4 had foregone his seniority. Even if any request is made for transfer, unless it is made known to the incumbent that upon acceptance of such request he would lose his past seniority and the incumbent accepts such a condition and the same is also reflected in the order of transfer, later on the authority cannot say that the past service rendered by the incumbent stands altogether obliterated for the purpose of seniority. It is in this context, learned Counsel for the respondent No. 4 has referred to the decision of this Court reported in 2007 (2) GLT329 (Sujit Paul v. State of Assam and Ors.

26. The Division Bench of this Court in 2006 Suppl. (1) GLT 493 (Abdul Matin Talukdar v. Haricharan Medhi) decided on 3.11.2006 has held that the Rules of 2003 has no retrospective application. It has also been held that only because the transfer order did mention about non-entitlement of TA and DA for the purpose, the conclusion cannot be to the effect that the transfer was on the own request of the incumbent. It is true that in the order of transfer of the respondent No. 4, it was mentioned that such transfer was on the basis of his own request, but nothing has been shown that the respondent No. 4 agreed for loss of his seniority. The order also did not indicate that the respondent No. 4 upon his transfer on own request would not be entitled to count his past service. This aspect of the matter will also have to be considered in the context of the 1982 Rules, which was prevalent at that point of time.

27. Learned Counsel for the petitioner has placed reliance on the decision of the Apex Court reported in : AIR2006SC2138 (K.P. Sudhakaran v. State of Kerala). He has also placed reliance on the decision of this Court reported in 2002 (1) GLT 216 (Rais Uddin v. State of Assam). In the case before the Apex Court, there was definite set of Rule providing loss of seniority on transfer from one department to another affected on own request, unlike the present case in which under 1982 Rules there was no such provision. In the second case, the learned Counsel for both the parties submitted that the Rules were silent in the matter of seniority on request transfer.

28. The position of the 1982 Rules was not brought to the notice of the Court. It was also found from the record that the transfer was not on public demand as was alleged. In the instant case, no records have been produced. Further, as noted above it is only Rule 24 of the 2003 Rules, which specifically provides loss of seniority on request transfer, which was not the position under 1982 Rules. However, at that time the Annexure-H guidelines dated 30.8.2001 issued by the Director of Secondary Education, Assam relating to fixation of seniority was in existence, which provided such a clause as in the 2003 Rules. As in the case of 2003 Rules, the said guidelines also did not have any retrospective application. The Division Bench of this Court in the aforesaid W.A. No. 448/2003 has discussed this aspect of the matter. Rule 24 of the 2003 Rules does not indicate the manner and method in which the seniority of the teachers of the M.E. School is to be determined upon amalgamation of the same with that of High or Higher Secondary School. In the order of amalgamation also, there was no indication regarding determination of seniority of the M.E. School teachers. Annexure-F order dated 26.9.2005 pertaining to amalgamation of the schools only spoke of absorption of the qualified staff of the M.E. School with effect from the date of amalgamation with their respective pay and prospect, but with amalgamated seniority list. If the M.E. School teachers are in a different cadre than that of the High School teachers, naturally the question arises as to whether upon amalgamation they would be entitled to count seniority from their initial date of appointment in the higher cadre. The official respondents have not highlighted this aspect of the matter.

29. When there is a merger of two or more establishments or integration of two or more cadres the inter se seniority amongst the employees in the merged establishment or the integrated cadre has to be determined on some rational principle. The mere fact that some hardship has been caused to members who are integrated will not render such a rule for determination of seniority invalid. In service law 'Cadre' means the strength of a service or a part of a service sanctioned as a separate unit. There may be a single cadre or more than one cadre in a service. An employer has a right to merge or integrate different cadres into one single cadre or to split a single cadre into different cadres for rationalizing administration.

30. The merger results in fusion of the two cadres into one single cadre. The rules or administrative orders which bring about integration might provide for the principles and manner in which the seniority of the integrated employees are to be determined. Needless to say such rules or orders must pass the test of constitutionality which particularly implies that they must be based on some fair, just and rational principle. If the service rendered by the employees who are merged is wholly ignored it would be most unjust. Equally, it would be unjust to employees with whom the merger takes effect, if the entire service of those who are being merged are taken into account when they belonged to a lower or inferior grade or cadre. It would also be discriminatory if after the merger of two cadres e.g. Junior Service and Senior Service, the members of the junior ground are given retrospective appointment from a date prior to the dates of appointments of the direct recruits in the Senior Service.

31. According to the respondents, the petitioner is entitled to be promoted. As per notification dated 19.10.2005 and the Rules of 2003, a Headmaster of the M.E. School having minimum qualification of graduation is entitled to function as Assistant Headmaster (Academic) of the amalgamated High School. The notification also provides that the inter-se seniority of the teachers of the amalgamated High School will be from their respective date of receipt of graduate scale. On the other hand Rule 14(3) of the 2003 Rules only provides that in case of amalgamated High School, the Headmaster of the M.E. School will be eligible for selection as Assistant Headmaster of the amalgamated school subject to the conditions laid down therein.

32. From the above, it will be seen that upon amalgamation of M.E. School with that of High School, the Headmaster of the M.E. School cannot automatically become the Assistant Headmaster of the amalgamated school. Rule 14 of the 2003 Rules does not provide for the same. It is only the aforesaid 2005 notification, which makes the provision for allowing the Headmaster of the M.E. School to function as Assistant Headmaster (Academic) in the amalgamated school. This position will have to be read in the context of the 2003 Rules as well as the further provision made in the notification itself. As per the further provision in the notification, the inter-se seniority of the teachers of the amalgamated High School will be from their respective date of receipt of graduate scale.

33. Apart from the fact that the aforesaid notification dated 19.10.2005 cannot override the statutory provisions, as noted above, same will also have to be read in the context of the further provision relating to inter-se seniority of the teachers made in the notification itself. There is no dispute that it is the respondent No. 4 who is senior to the petitioner in respect of receipt of graduate scale of pay, which is 1.4.1973 and 19.10.1979 respectively. If that be so, irrespective of the question of cadre etc., the respondent No. 4, as per the said notification, is senior to the petitioner.

34. The aforesaid notification dated 19.10.2005 allows the Headmaster of M.E. School to function as Assistant Headmaster of the amalgamated High School subject to the condition that the incumbent has minimum qualification of graduation. This is contrary to Rule 12, 13 and 14 of the aforesaid Rules of 2003 read together. As per Rule 14 the post of Vice-Principal shall be filled up by promotion on the basis of combineds seniority in the school among graduate and postgraduate teachers having minimum prescribed length of service. The minimum qualification prescribed for Headmaster is Graduate with B.T. or B.Ed degree. The post of Principal, Vice-Principal, Post Graduate Teacher and Headmasters are in the Class-II (senior). The petitioner is only graduate without the degree of B.T. or B.Ed. On the other hand the respondent No. 4 is B.Sc. with B.Ed degree. The prescribed educational qualification could not have been relaxed and/or done away with by the aforesaid notification dated 19.10.2005.

35. Another important aspect of the matter is that neither the aforesaid notification nor the Rules of 2003 has made any provision for amalgamation of M.E. School with that of a Higher Secondary School and as to the consequence thereof. The provisions are only in respect of amalgamation of M.E. School with that of High School and not with Higher Secondary School. The provision relating to allowing the Headmaster of the M.E. School to act in a particular petition in the amalgamated school is also only as Assistant Headmaster (Academic) and not as Vice-Principal for filling up of which there is distinct and elaborate procedure. The petitioner only on the strength of allowing him to act as Headmaster of the M.E. School (he has not been promoted as regular Headmaster) was allowed to act as the Vice-Principal of the school. This position will have to be understood in the context of the post of Assistant Headmaster and Vice-Principal are in two different and distinct cadres. Further as per Annexure-8 letter dated 4.5.2006 annexed to the counter affidavit filed by the respondent No. 4, there is also no sanctioned post of Assistant Headmaster or the Vice-Principal in the amalgamated H.S. School. If that be so, it is not understood as to how the petitioner could be entertained as Vice Principal in-charge.

36. The present controversy is as to who will hold the charge of Principal being the seniormost teacher of the school. The outgoing Principal of the school handed over the petitioner with the charge on his retirement with effect from 28.2.2006. Same was followed by the Annexure-L order dated 27.3.2006 issued by Director of Secondary Education, Assam allowing the petitioner to hold the charge of Principal. Thus the charge was given to the petitioner considering him to be the seniormost teacher of the school. Prior to the order dated 27.3.2006, the respondent No. 4 had approached this Court by filing the writ petition being WP(C) No. 1728/ 2006 with the prayer for allowing him to hold the charge being the seniormost teacher of the school. In this connection, he referred to Annexure-5 and 6 letters dated 19.10.2005 and 26.2.2006 addressed to the Director of Secondary Education, Assam and the Inspector of Schools by the then Principal of the school.

37. By Annexure-5 letter dated 19.10.2005, the Principal of the amalgamated school forwarded the lists of teaching and non-teaching staff of High School Section and the M.E. Section separately. By An-nexure-6 letter dated 26.2.2006 while furnishing the statement of seniority, the respondent No. 4 was shown at serial No. 2, while the petitioner was shown at serial No. 4. The writ petition was disposed of by order dated 22.3.2006 with the following direction:

Having regard to the above facts which emerge from the materials made available by the petitioner on oath, this petition is disposed of with direction to the Inspector of Schools, KDC, Guwahati to verify as to whether the writ petitioner joined the school and was given graduate scale of pay earlier than the private respondent and, if so, the petitioner shall be allowed to continue as In-charge Principal. This exercise shall be completed within a period of 7 days from the day when a copy of this order is furnished to him by the writ petitioner.

38. Being aggrieved by the said order, which was ex-parte against the petitioner, he filed Review Petition being R.P. No. 68/2006 urging the same very grounds as have been urged in this writ petition. The prayer made in the review petition was to review the said order dated 22.3.2006, re-hear and re-examine the matter afresh and to dismiss the writ petition. The review petition was never admitted and was dismissed by order dated 7.8.2006 on withdrawal. Such withdrawal was without any liberty to file writ petition and/or to pursue any other remedy. The question necessarily arises as to whether the petitioner after filing the review petition assailing the legality and/or validity of the order passed by this Court in the writ petition filed by the respondent No. 4 and withdrawing the same without any reservation, could have filed the instant writ petition on the same very grounds.

39. At the time of filing the instant writ petition on 2.8.2006, the review petition filed by the petitioner, was very much pending, but was withdrawn on 7.8.2006, on which date, the writ petition was entertained. It is not known as to whether the fact of withdrawal of the review petition was brought to the notice of the Court. Be that as it may, the direction of this Court in the aforesaid writ petition has attained its finality, there being no challenge to the same. As per the said direction, if the respondent No. 4 joined the school and' was given graduate scale of pay earlier than the petitioner, the respondent No. 4 should be allowed to hold charge of Principal.

40. There is no dispute that the respondent No. 4 received graduate scale of pay much earlier than the petitioner. That apart, if by virtue of receiving graduate scale of pay by the petitioner, irrespective of his service in the M.E. School, if it is held that he was included in the graduate cadre, than also, as per the cadre seniority, the respondent No. 4 would rank senior to him. This will lead to the second condition of joining the school at the earlier point of time. It is in this context, the petitioner has raised the plea of loss of seniority upon joining of the school by the respondent No. 4 in 1993 by virtue of his transfer from the earlier school and joining the present school on his own request. The consequence of such joining by the respondent No. 4 has been discussed above and it is my considered view that the respondent No. 4 cannot be made to forego his seniority from the initial date of joining the graduate cadre in another school and that too at the instance of the petitioner, who at that time was working in anther school, lower in rank and status.

41. The aforesaid plea will also have to be judged keeping in mind that at the time of transfer of the respondent No. 4 in 1993, the petitioner was nowhere in the picture and thus naturally he had no existing right. After 12 years of the transfer of the respondent No. 4, the M.E. school was amalgamated with the Higher Secondary School. No other existing teacher of the High School, since upgraded as Higher Secondary School made any grievance against counting of seniority of the respondent No. 4 taking into account his earlier service in another school. It is the petitioner, who after coming to the school upon amalgamation, has raised the issue only to make out a point to favour his case. In the process, he has conveniently forgotten his own condition in which he also came to the amalgamated Higher Secondary School by virtue of merger of the M.E. School.

42. As noticed above, the petitioner was not a regularly selected and appointed Headmaster of the M.E. School. Initially he was allowed to function as Headmaster of the school for a limited period of three months and thereafter he was allowed to continue until further order with the condition that such appointment was terminable at any point of time without assigning any reason thereof. Thus, here is a case in which the petitioner who was simply allowed to function as the Headmaster of the M.E. School, upon amalgamation of the same with that of the H.S. School was first allowed to function as Vice-Principal in-charge and thereafter as Principal in-charge ignoring the claim of the respondent No. 4 an existing teacher of the H.S. School and senior to the petitioner.

43. Further, the aforesaid order dated 22.3.2006 passed in WP (C) No. 1728/2006 has been well understood by the official respondents. Consequently by the impugned order dated 29.7.2006 (Annexure-P), the respondent No. 4 was allowed to hold the charge of Principal. However, during the pendency of the writ petition and when there was no stay order operating in favour of the writ petitioner and thus the order dated 29.7.2006 was very much in existence, the Director of Secondary Education, Assam without superseding the said order passed by himself, issued another order dated 1.9.2006 (Annexure-A to Misc. Case No. 914/2007) allowing the Inspector of Schools to exercise financial power. That order was followed by Annexure-B order dated 11.9.2006 passed by the Assistant Inspector of Schools allowing the petitioner to act as academic in-charge of the school. That order of the Assistant Inspector of Schools was in clear violation of the order of the Director of Secondary Education,

44. During the course of hearing, when the aforesaid position was brought to the notice of this Court, this Court by order dated 14.3.2007 directed the learned Standing Counsel, Education Department to obtain instruction so as to furnish clarification as to how the aforesaid two orders could be passed during the pendency of the writ petition. However, till conclusion of the hearing of the case, learned Standing Counsel could not furnish any instruction. In the meantime, an order was passed on 11.5.2007 to maintain status-quo as on that date.

45. For all the aforesaid reasons, discussions and conclusions, the writ petition merits dismissal, which I accordingly do. The respondent No. 4 being senior to the petitioner shall continue to hold the charge of Principal in terms of the impugned order dated 29.7.2006 (Annexure-P) till such time, the post of Principal is filled up through regular process of selection.

46. The writ petition is dismissed leaving the parties to bear their own costs.