B.K. SHARMA, J.: The controversy involved in all the four writ petitions, is in respect of a letter which itself has been incorporated in the particular rule, purportedly determining the seniority of the Classical Teachers of Hindi, Sanskrit, Ara­bic, Persian, Assamese, Bodo etc., who are graduates and serving in the graduate cadre of the service, from the date of issuance of the letter. FACTS IN WP(C) No. 7125/2003 2. This writ petition has been filed by an association formed by the members, who are classical teachers in various High Schools and Higher Secondary Schools in the State of Assam. They are all graduates. Be it stated here that the classical teachers represent the teachers of Hindi, Sanskrit, Arabic, Persian, Assamese, Bodo, etc. By letter dated 3.8.90 (Annexure-I) issued by the Deputy Secretary to the Government of Assam in the Educa­tion Department to the Director of Second­ary Education (DSE), Assam, it was intimated that the classical teachers of the above cat­egories having degree qualification might be included in the cadre of general teachers for giving benefit of promotion to higher posts in the same line of general teachers. The letter reads as follows: "GOVERNMENT OF ASSAM Education (Personnel) Department ******* No.EPG.890/87/29 Dated Dispur, the 3rd August, 1990 To: The Director of Secondary Education, Assam, Kahilipara, Guwhati-19 Subject : Inclusion of the classical teacher of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having degree qualification in the cadre of General Teachers for promotion to higher posts. Reference: Your letter No. GB-EST/ASSO/3/86/216, dated 26.6.90 Sir, With reference to your letter on the subject cited above, I am directed to say that the classical teachers of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having degree qualification may be included in the cadre of general teachers for giving benefit of promotion to higher posts in the same line of general teachers. Yours faithfully (RAHazarika) Deputy Secretary to the Govt. of Assam Education Department." 3. By a notification dated 30.12.91, cer­tain amendments were brought to the Assam Secondary Education (Provincialised) Service Rules, 1982. By the said amendment Rule 3 of the original Rule was substituted by a new Rule 3 and in the said Rule, graduate teach­ers of Higher Secondary and Multipurpose School or High School or High Madrassa and Senior Classical Teachers or Senior Hindi Teachers having bachelor degree as general qualification was included in Grade-IV of the cadre. By the said amendment Rule 3 of the original Rule was substituted by a new Rule 3 and in the said Rule, graduate teach­ers of Higher Secondary and Multipurpose School or High School or High Madrassa and Senior Classical Teachers or Senior Hindi Teachers having bachelor degree as general qualification was included in Grade-IV of the cadre. The petitioners referring to the provi­sions of Rule 9 and 10 of the aforesaid Rules have contended that they being at par with other graduate teachers are entitled to be pro­moted to next higher grades such as Assis­tant Headmaster, Headmaster, Vice Princi­pal and Principal etc. taking into account their seniority from the date of entering the service in the graduate cadre. The members of the petitioner's association are all graduates or above and they entered their services prior to 1990 arid according to them as per their date of joining and continuous appointment, they are the senior most teachers in some schools eligible for promotion to the afore­said grades. It is the case of the petitioners that apart from the fact that they are in the same cadre with that of other graduate teach­ers, they also enjoy the same pay scale. A specific averment has been made in paragraph 9 of the writ petition that the seniority of the teachers, which is fixed on the basis of join­ing and date of continuous appointment, many classical teachers have been promoted to the aforesaid higher grades. 4. In support of the case of the petition­ers, they have placed reliance on the Annexure-n memorandum dated 6.2.97 issued by the Commissioner & Secretary to the Gov­ernment of Assam in the Education Depart­ment by which it was clarified in reference to the Annexure-1 letter dated 3.8.90 quoted above that inclusion of classical teachers hav­ing degree qualification into the cadre of gen­eral teachers shall be effective from the date of acquiring of the requisite qualification. The letter reads as follows: "GOVERNMENT OF ASSAM EDUCATION (SECONDARY) DEPARTMENT DISPUR Office memorandum No. S(B)S.883/93/88 Dated Dispur, the 6lh February, 1997 A question has arisen in 15 ATA/95 between Sree Dambaru Gogoi Vrs. State of Assam as to the meaning of "Degree qualification" referred to in this Department letter No. EPG/890/87/29 dated 3.8.90. By this letter the Government had directed that classical teachers of Hindi/ San­skrit/ Arabic/ Persi/ Assamese/ Bodo etc. State of Assam as to the meaning of "Degree qualification" referred to in this Department letter No. EPG/890/87/29 dated 3.8.90. By this letter the Government had directed that classical teachers of Hindi/ San­skrit/ Arabic/ Persi/ Assamese/ Bodo etc. hav­ing degree qualification may be included in the cadre of general teachers for giving benefit of promotion to higher post. Having considered different aspects, it is clari­fied that "degree qualification" referred to in the Govt. orders in question means Bachelor's Degree in/with relevant classical subject, or an equivalent degree recognized by Govt. of Assam as Bachelor's degree in/with the relevant clas­sical subject. It is further clarified that inclusion of a classi­cal teacher with such requisite degree qualifi­cation into cadre of general teacher shall be effective by from the date of acquiring of the requisite qualification by the teacher indi­vidual in question. Sd/- Jai P.Prakash) Commissioner & Secretary to the Govt. of Assam, Education (elementary & Secondary) Department, Dispur." 5. When the matter rested thus, the Annexure-III letter dated 4.5.2001 was issued by the Deputy Secretary to the Government of Assam in the Education Department to the DSE, Assam conveying the approval in re­spect of the purported seniority given to the classical teachers in the cadre of general teachers from the date of issuance of the Annexure-I letter dated 3.8.90 for having the benefit of promotion to the higher grades. The letter was issued in reference to representa­tion submitted by the teachers mentioned in the letter itself to the Minister of Education, Assam. The letter is reproduced below: "GOVERNMENT OF ASSAM EDUCATION (SECONDARY) DEPARTMENT No. S(B)S-244/99/42Dated Dispur, the 4th May/ 2001 From: Shri S. Brahma, Deputy Secretary to the Govt. of Assam Education Department. To: The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. Sub: Seniority in service-regarding. Sir, I am directed to refer to Govt. letter No. LP-890/ 87/29, dated 3.8.1990 (copy enclosed) and your endorsement dated 2-3-2001 vide U/O. No. GB-EST/Misc/2/2001 in this Department file No. B(3)S-244/99 and convey the approval in re­spect of the seniority given to the classical teachers of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having degree qualifica­tion in the cadre of general teachers from the date of issue of Gov.t letter under reference i.e. with effect of 3-8-1990 for having benefit of promotion to the High posts. Yours faithfully Sd/- (Deputy Secretary to the Govt. of Assam Education Department. Memo No. B(3)S-244/99/42-A,Dated Dispur, the 4th May/2001. having degree qualifica­tion in the cadre of general teachers from the date of issue of Gov.t letter under reference i.e. with effect of 3-8-1990 for having benefit of promotion to the High posts. Yours faithfully Sd/- (Deputy Secretary to the Govt. of Assam Education Department. Memo No. B(3)S-244/99/42-A,Dated Dispur, the 4th May/2001. Copy to Sarbashri Rabi Sarmah, Asstt. Teacher, Dilip Singh, Asstt. Teacher and Promod Ranjan Das, Asstt. Teacher with reference to their rep- resentative to Hon'ble Minister of Education, Assam. By order Deputy Secretary to the Govt. of Assam, Education Department." 6. The petitioners are aggrieved by the ap­proval conveyed by the said letter dated 4.5 .200 1 fixing their seniority in the graduate cadre with effect from 3 .8.90 which accord­ing to them will have serious repercussions and implications in their service conditions and career having regard to the fact that they had joined their service much before 3.8.90 and their seniority was all along counted from the date of joining. Referring to Rule 13 of the aforesaid Rules of 1 982, which lays down the criteria towards determining seniority, it is the case of the petitioners that the aforesaid letter dated 4.5 .2001 is in violation of the pro­visions of Rule 1 3 . In between, the petition­ers filed certain writ petitions making chal­lenge to the aforesaid letter dated 4.5.2001 and another letter dated 1 5 .6.2002 (Annexure-VII to the writ petition) by which also the classical teachers were given seniority with effect from 3.8.90. This Court while enter­taining the writ petitions granted interim protections by way of stay of the said letters. However, in the meantime, as a consequence of providing seniority to the classical teach­ers with effect from 3.8.90, the seniority of the incumbents named in Annexure-IV order dated 14.9.2001 involving two teachers in the graduate cadre, one of whom happened to be a Sanskrit teacher was determined hold­ing that the Sanskrit teacher would get the seniority with effect from 3.8.90. Referring to this particular instance, the petitioners have expressed their apprehension about loss of seniority and promotion of their members. 7. Referring to this particular instance, the petitioners have expressed their apprehension about loss of seniority and promotion of their members. 7. In the meantime, the Government of Assam in the Education Department issued a notification dated 1.3.2003 (Annexure-X) providing seniority to the Assistant Teachers with graduate degree working in the interme­diate cadre in the graduate cadre from the date of their joining as an Assistant Teacher, However, the Classical and Hindi Teachers were excluded from the purview of such ben­efit. The notification reads as follows: "GOVERNMENT OF ASSAM EDUCATION (SECONDARY)DEPARTMENT DISPUR::GUWAHATI-6. ORDERSBYTHEGOVERNMENT OF ASSAM NOTIFICATION. Dated Dispur, the 1st March'2003 No.B(3)S.39/2002/66: The Governor of Assam is pleased to notify tint in respect of the Assis­tant Teachers with graduate-degrees who have worked in the intermediate scale in provincialised High Schools/Higher Secondary Schools, seniority of service will be counted from the date of their joining as Asstt. Teach­ers. This is subject to me condition that it will not apply to Classical and Hindi Teachers, and also it has no financial implications. Sd/-P.SARAN,IAS Commissioner and Secretary to the Govt. of Assam, Education Department" 8. According to the petitioners, discrimi­nation is writ large on the face of it inasmuch as the petitioners, who are all along in gradu­ate cadre with counting of seniority from their initial date of appointment were first sought to be deprived by a wrong interpretation of the letter dated 3.8.90 and secondly, even the intermediate teachers with graduate qualifi­cation enjoying lower pay scale than the graduate pay scale being enjoyed by the pe­titioners have been granted seniority from their initial date of joining the service to the exclu­sion of the petitioners. 9. By Annexure-XII notification dated 11.8.2003, anew set of Rule called the Assam Secondary Education (Provincialised) Service Rules, 2003 was promulgated and the same replaced the earlier set of Rules of 1982. Rule 24 (2Xii) of the aforesaid Rules of 2003 which is under challenge in this writ petition deter­mines the seniority of the classical teachers with effect from 3.8.90 i.e. the date of issu­ance of the Annexure-I letter dated 3.8.90. Rule 24 (2Xii) of the aforesaid Rules of 2003 which is under challenge in this writ petition deter­mines the seniority of the classical teachers with effect from 3.8.90 i.e. the date of issu­ance of the Annexure-I letter dated 3.8.90. The relevant provision relating to seniority is quoted below: "24.(l)The inter-se-seniority of the teachers of Graduate cadre and Post Graduate cadre in a school shall be considered/determined for fill­ing up the vacancies of Vice-principal on the basis of:- (i) The date of continuous service in the school irrespective of graduate or post graduate post ort regular basis; (ii) The date of joining; (iii) The date of birth, position in the merit list recommended by the State Selection Board (iv)The date of birth in case of employees hold­ing same position in the merit list. (2) Seniority for promotion to the post of Head Master/Superintendent/ Assistant Head Mas­ter/Assistant Superintendent shall be deter­mined on the following basis:- (i) if an Assistant Teacher of a School is ap­pointed as subject teacher in the said school with continuous service he/she shall get the benefit of seniority from the date of joining as Graduate Teacher in the school. (ii)Seniority regarding Classical Teacher shall be counted as per Govt. letter No. B(3)S214/99/ 42 dated 3.8.90 in which it is stated that the Classical teachers of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having Degree qualification may be included in the cadre of graduate teacher for giving benefit of promo­tion to the High post in the same line of general teachers i.e. from the date of issue of the afore­said Govt. letter dated 3.8.90." 10. Referring to various provisions of the aforesaid Rules of 2003 and the earlier set of Rules of 1982 and also the provisions of the Assam Secondary (Provincialisation) Act, 1977, it is the case of the petitioners that the aforesaid provision as incorporated in Rule 24(2)(ii) is incongruous, inconsistent and ir­rational and upon a harmonious construction of the provisions of the Act and the Rules, the repugnancy is required to be removed. IN WP(C) No. 3971/2002 11. In this case, the petitioner, was first appointed as Assistant Teacher in the inter­mediate scale of pay on 1.3.71 and thereaf­ter he was upgraded as Assistant Teacher in the graduate scale of pay by an order dated 26.9.79 and since then has been serving in the said cadre. IN WP(C) No. 3971/2002 11. In this case, the petitioner, was first appointed as Assistant Teacher in the inter­mediate scale of pay on 1.3.71 and thereaf­ter he was upgraded as Assistant Teacher in the graduate scale of pay by an order dated 26.9.79 and since then has been serving in the said cadre. On the other hand the respon­dent No. 5 joined as Classical Teacher (Ara­bic) on 2.2.68 and got the graduate scale of pay with effect from 1.2.74. He was selected and recommended by the State Selection Board, Assam in the year 1997 for promo­tion/appointment as Assistant Headmaster and the same was approved by the Govern­ment by letter dated 23.4.98. In reference to the letters referred to above in WP(C) No. 7125/2003, more particularly the one dated 3.8.90, it is the case of the petitioner that al­though he received the graduate scale of pay with effect from 1.9.79 as against the respon­dent No. 5 receiving the same with effect from 1.2.74, he being a graduate teacher in the general category as against the respondent No. 5 being a classical teacher included in the cadre of general teacher only pursuant to the said letter dated 3.8.90, he is senior to him. Thus according to the petitioner, the very selection of the respondent No. 5 based on erroneous seniority is not sustainable. How­ever, the DSE, Assam by the impugned or­der dated 25.1.2002 rejected the represen­tation of the petitioner. WP(C) No. 2825/2003 12. This writ petition has been filed by the private respondent (respondent No. 5), in the abovementioned WP(C) No. 3971/2002, claiming promotion to the post of Headmas­ter. Referring to the various provisions of the aforesaid Rules of 2003, it is the case of the petitioner that he is entitled to be considered for promotion against the vacant post of Headmaster in the school in which he has been serving. WP(C) No. 7191/2002 13. The grievance made in this writ petition is in respect of the order by which the private respondent has been appointed as Principal in-charge purportedly ignoring the seniority of the petitioner. As in the other three writ petitions, the issue involved in this writ petition is also as to whether the petitioner, who is a Hindi Teacher and working as Vice-principal with graduate qualification in the graduate scale of pay will get his seniority with effect from, 3.8.90 or from before. As in the other three writ petitions, the issue involved in this writ petition is also as to whether the petitioner, who is a Hindi Teacher and working as Vice-principal with graduate qualification in the graduate scale of pay will get his seniority with effect from, 3.8.90 or from before. The petitioner who is a Bachelor of Arts and a "Proveen" in Hindi was first appointed as Hindi Teacher by order dated 25.7.79. He obtained degree in Bachelor of Education (B.Ed) in 1997. He has been receiving the graduate scale of pay from the date of joining the school. In 1997, the principal-incharge of the school by his letter dated 3.11.97 forwarded a seniority list of the teachers to the Inspector of Schools, Nagaon District Circle, Nagaon for the purpose of selection as Principal and Vice principal. The said list contained the name of the petitioner at serial No. 3. The post of principal in the school is lying vacant since 1.1.95. The name of the petitioner was included at serial No. 3 in the list and according to him he being the senior most existing Assistant Teacher in the graduate cadre, on number of occasions, he was entrusted with the duties, functions and responsibilities pf the post of Vice-principal and at the time of filing of the writ petition also he was holding the post of Vice-principal in absence of any regular Vice-principal. 14. Referring to the aforesaid letter dated 3.8.90 and various provisions of the aforesaid Rules of 1982, it is the case of the petitioner that he is at par with other teaches in the graduate cadre and is entitled to count seniority in the said cadre from the date of entry into the service in accordance with Rule 13. In fact, his such seniority had been counted from the date of entry into the service i.e. 2.8.79 as will be evident from the aforementioned seniority list. However, a confusion was sought to be created on the basis of the said letter dated 3.8.90 and subsequent letters as indicated in WP(C)No. 7125/2003. With the expiry of the Principal-incharge of the school on 12.8.2002, the post of Principal fell vacant and the petitioner being the Vice-principal of the school aspired for his promotion as Principal-incharge. However, a confusion was sought to be created on the basis of the said letter dated 3.8.90 and subsequent letters as indicated in WP(C)No. 7125/2003. With the expiry of the Principal-incharge of the school on 12.8.2002, the post of Principal fell vacant and the petitioner being the Vice-principal of the school aspired for his promotion as Principal-incharge. In this connection he also made a representation dated 13.8.2002 pointing out as to how he is senior having joined the graduate cadre on 2.8.79 as against such joining of the respondent No. 4 on 1.11.85. His representation was duly forwarded by the Inspector of Schools, by his letter dated 26.8.2002 to the DSE, Assam. However, by the impugned orders dated 20.9.2002 and 23.9.2002 issued by the DSE, Assam, it was the respondent No. 4 who was appointed principal-incharge of the school on the analogy that the petitioner being a classical teacher would get his seniority with effect from 3.8.90 and thus irrespective of his joining the school on 2.8.79, the respondent No. 4 who joined the school on 1.11.85 would rank senior to him. 15. It is in the above backgrounds, the writ petitions have been filed for appropriate relief. The State respondents have not filed any counter in any of the writ petitions. However, a counter affidavit has been filed on behalf of the respondent No. 4 who got himself impleaded in WP(C) No. 7125/2003, who is an Assistant Teacher in the graduate scale of pay. The respondent No. 4 in WP(C) No. 2825/2002, who is the writ petitioner in WP(C) NO. 3971/2002, has filed a counter affidavit. Likewise the respondent No. 5 in WP(C) No. 3971/2002 who is the writ petitioner in WP(C) No. 2825/2004 has filed a counter affidavit. Learned Standing Counsel, Education Department has produced certain records in connection with the first writ petition i.e. No. WP(C)No. 7125/2003. STAND IN THE COUNTER AFFIDAVITS 16. As noticed above, the three writ petitions being WP(C) Nos. 7125/2003, 2825/2004 and 7191/2002 are all by the petitioners, whose grievance is against the decision of the official respondents to count their seniority in the service with effect from 3.8.90. In WP(C) No. 3971/2002, it is the claim of the petitioner that he being an Assistant Teacher in the graduate cadre, will score a march over the respondent No. 5, who is an Assistant Teacher (Classical) whose seniority is to be counted from 3.8.90. In WP(C) No. 3971/2002, it is the claim of the petitioner that he being an Assistant Teacher in the graduate cadre, will score a march over the respondent No. 5, who is an Assistant Teacher (Classical) whose seniority is to be counted from 3.8.90. The respondent No. 5 who is the writ petitioner in WP(C) NO. 2825/2004 has filed an affidavit-in-opposition in this case. It is the stand in the affidavit that his entire period of service, which he admittedly rendered in the graduate cadre cannot be obliterated by granting him seniority from 3.8.90. 17. As noticed above, no affidavit-in-opposition has been filed by the State respondents controverting the claim of the classical teachers. In WP(C) No. 2825/2004 filed by the respondent No. 5 of WP(C) No. 3971/2002, the respondent No. 4 has filed an affidavit-in-opposition. In the said affidavit placing reliance of the aforesaid letter dated 3.8.90, the stand in the writ petition filed by him i.e. WP(C) No. 3971/2002, has been reiterated that the petitioner being a classical teacher would get his seniority with effect from 3.8.90 only. Although, no affidavit-in-opposition has been filed by the private respondent i.e. the respondent No. 4 in WP(C) No. 7191/2002, an application (Misc. case No. 2122/2003) for vacating the interim order passed, has been filed. In the said application also it is the stand of the respondent No. 4 that the petitioner being a classical teacher would get his seniority only with effect from 3.8.90. 18. In the counter affidavit filed by the respondent No. 4 in WP(C) No. 7125/2003, placing reliance on Rule 3 of the aforesaid Rules of 1982 and the provisions of the Assam Secondary (Provincialisation) Service and Conduct Rules, 1979, justification has been made that till issuance of the letter dated 3.8.90 and the subsequent amendment brought to the aforesaid Rules of 1982 in 1991, there were two distinct cadres of graduate teachers and other language/craft/ classical teachers of the secondary schools. To buttress the argument, reliance has been placed in an order dated 26.3.84 (Annexure-1) to show that the graduate and classical teachers formed two distinct and separate cadre with separate pay scales. The graduate teachers enjoyed the pay scale of Rs. 620-1315/- as against the pay scale of Rs. 580-1165/- enjoyed by the classical teachers. To buttress the argument, reliance has been placed in an order dated 26.3.84 (Annexure-1) to show that the graduate and classical teachers formed two distinct and separate cadre with separate pay scales. The graduate teachers enjoyed the pay scale of Rs. 620-1315/- as against the pay scale of Rs. 580-1165/- enjoyed by the classical teachers. It will be pertinent to mention here that in the same very document, the language and craft teachers who have also been shown separately were in the pay sale of Rs. 500-875/-. 19. Placing reliance on the schedule-I to the aforesaid Rules of 1979, it is the stand of the respondent No. 4 that as against the classification of the Assistant Graduate Teacher (Junior) separately with that of other language/craft/classical teacher of secondary schools, the requisite qualification for Assistant Graduate Teacher was also shown as B.A./B.Sc/B.Com as against no such prescription against the language/craft/ classical teacher and the same was indicated as "as prescribed by Govt." Placing reliance on the amended provisions of the 1982 Rules brought in 1991, it is rather the stand of the respondent No. 4 that the classical teachers are not even entitled to get their seniority from 3.8.90, but are entitle to count their seniority in the graduate cadre with effect from 30.12.91, when the amendment was brought to the aforesaid Rules of 1982 and the classical teachers were included alongwith the graduate teachers in Grade-IV under Rule 3. 20. For a proper appreciation of the matter, this Court while hearing the matter on 16.6.2004, thought it prudent to frame the following issues and directed the State respondents (Secretary, Education, Assam) to file their affidavit touching the issues so framed. Unfortunately, the State respondents did not file any affidavit even after passing the said order dated 16.6.2004. The issues formulated in the order dated 16.6.2004 are as follows: "(I) Whether the Annexure 5, 6 and 7 letters dated 3.8.90,4.5.2001 and 22.1.2001 in WP(C) No. 3971/2002 can be said to be circulars deter­mining the seniority of Classical teachers of the State and if so what was the procedure adopted towards issuance of the same and as to whether the same and as to whether the same conform to the requirements of issuance of circulars. (II) Whether the said letters s\could supersede the Rules i.e. the Assam Secondary Education (Provincialised) Rules, 1982; the amendment ef­fected in the year 1991 and the provisions of the Assam Secondary Education (Middle En­glish Schools and High Schools) (Provincialisation) Rule, 1979. (III) What is meant by Classical Teachers and whether there are two categories of such teacher i.e. graduate teachers with the nomenclature Classical teacher and other Classical teachers who are not graduates, but are qualified through special course. (IV) If the seniority of the Classical teachers are to be counted from the date of issuance of the Annexure-5 letter above, what will happen to their earlier service as regards seniority. (V) If the graduate Classical teachers were not in the graduate cadre prior to Annexure-5 letter dated 3.8.90, where were they i.e. in which cadre. Does it mean that even a graduate teacher in Assamese, Bodo, Bengali etc. is a Classical teacher and inferior to other graduate teachers. In addition to the above, the respondents may also I\i\highlight any other relevant factors ei­ther on fact or in law which might help to re­solve the controversy involved in the case." 21. I have heard Mr. G.K. Bhattacharyya, learned Sr. Counsel assisted by Mr. P. Sarma, learned Advocate on behalf of the petitioners in WP(C) No. 7125/2003. Mr. A.S. Chouhdury, learned Sr. Counsel, assisted by Mr. R. Majumdar, learned Advocate made submissions on behalf of the petitioner in WP(C) No. 3971/2002 who is the respondent No. 4 in WP(C) No. 2825/2004. I have also heard Dr. B. Ahmed, learned counsel for the petitioner in WP(C) No. 2825/ 2004 who is the respondent No. 5 in WP(C) 3971/2002. Mr. S. Sarma, learned counsel appeared and argued on behalf of the petitioner in WP(C) No. 7191/2002. 22. Mr. A.K. Phukan, learned Advocate General, Assam, assisted by Mr. B.J. Talukdar, learned Jr. Govt. Advocate, Assam argued defending the provisions of the Rules under challenge. Mr. S.N. Sarma, learned Sr. Standing Counsel, Education Department, assisted by Mr. Y.S. Mannan, learned Standing Counsel, Education Department argued on other aspects of the matter. Mr. K.N. Choudhury, learned Sr. Counsel, assisted by Mr. R. Dubey, learned counsel made submissions on behalf ofthe respondent No. 4 in WP(C) No. 7125/2003. Dr. Y.K. Phukan, learned Sr. Counsel, assisted by Mr. D. das, Advocate argued on behalf of the respondent No. 4inWP(C) No. 7191/2002. 23. Mr. K.N. Choudhury, learned Sr. Counsel, assisted by Mr. R. Dubey, learned counsel made submissions on behalf ofthe respondent No. 4 in WP(C) No. 7125/2003. Dr. Y.K. Phukan, learned Sr. Counsel, assisted by Mr. D. das, Advocate argued on behalf of the respondent No. 4inWP(C) No. 7191/2002. 23. For a better appreciation of the arguments made on behalf of the classical teachers, they are enumerated as follows: (i) The graduate classical teachers have been working in different Secondary/Higher Secondary schools and their services were also provincialised like the services of any other teacher. They have all along been treated at par with that of any other assistantteacher in the graduate cadre and they enjoy the same pay scale with the same status, duties and responsibilities. (ii) Section 3 of the Assam Secondary Education (Provincialisation) Act, 1977 laying down various definitions like date of appointment, existing employee etc. makes it abundantly clear that the petitioners are entitled to count their seniority in the graduate cadre from their initial date of appointment. (iii) The provisions of Rule 3 (ii) (d) of the Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules, 1979 mandatorily require the presence of one graduate teacher with classical subject in his degree course for the purpose of Provincialisation of a school. (iv) Rule 3 of the pre-amended Rules of 1982 made no distinction of general graduate teachers and classical graduate teachers and both of them were indicated conjointly and compositely as graduate teachers. (v) The composite cadre of assistant teachers who are graduates and inclusive of both graduate classical teacher and other graduate teacher were shown separately in the same cadre by re-defining Rule 3 of the 1982 Rules while bringing the amendment of 1991 as per which Grade-IV graduate teachers constitute a single cadre comprising the graduate teacher of Higher Secondary and Multipurpose School or High School or High Madrassa and senior classical teachers or senior Hindi teachers having bachelor degree as general qualification as indicated in serial No. 4 of schedule-II of the Rules. (vi) By the said amendment of 1991, the confusion sought to be created in respect of the senior classical teachers having bachelor degree and the senior classical teacher, who are not graduates, but obtained degrees like Assam Madrassa Final (Fazil), Sashtri Examination from Assam Sanskrit Board and obtained degrees like Proveen Rastra Bhasa Ratna, Sahitya Ratna etc. (vi) By the said amendment of 1991, the confusion sought to be created in respect of the senior classical teachers having bachelor degree and the senior classical teacher, who are not graduates, but obtained degrees like Assam Madrassa Final (Fazil), Sashtri Examination from Assam Sanskrit Board and obtained degrees like Proveen Rastra Bhasa Ratna, Sahitya Ratna etc. in case of senior Hindi teacher was removed. Further distinction was made between senior classical teachers having bachelor degree and the junior classical teachers shown in the schedule. (vii)Rule 13 of the pre-amended Rules of 1982 including the amendment of 1991 determined the seniority of the petitioners from the date of their continuous appointment/date of joining and the same could not have been put to j eopardy by the impugned rules. (viii) The true purport and import of the Annexure-1 letter dated 3.8.90 was not to confer seniority to the classical teachers mentioned therein from the date of issuance of the letter but was only a clarification regarding permissibility of inclusion of classical teachers with bachelor degree along with other graduate teachers for the purpose of promotion to higher grades. The said letter never spoke of seniority. It is not that the said letter dated 3.8.90 brought the classical teachers with bachelor degree to the cadre of assistant teacher (graduate cadre). They were already in the graduate cadre and by the said letter dated 3.8.90 the matter was only clarified. (ix) There is no qualitative difference between the graduate classical teachers and the other general graduate teachers and they are all along treated at par. In fact, the petitioners also take classes in all subjects like any other graduate teachers. (x) The respondent No. 4 in WP(C) No. 7125/2003, in his affidavit tried to mislead the court by projecting a case that the classical teachers are in the lower scale than that of other teachers in the graduate cadre. The Annexure-1 document dated 26.3.84 on which the respondent No. 4 placed reliance in support of such a contention is misleading. There was some anomaly in showing the pay scale of the classical teacher and the same was removed by notification dated 15.5.86 providing the same pay scale to the Hindi/ classical teachers like that of any other graduate teacher. (xi) There are no reasonable criteria in fixing the date as 3.8.90 towards counting the seniority of the petitioners' altogether oblitering their earlier service. (xi) There are no reasonable criteria in fixing the date as 3.8.90 towards counting the seniority of the petitioners' altogether oblitering their earlier service. 24. To buttress the above arguments, reliance was placed on the following decisions: (1983) 1 SCC 305 (D.S. Nakara Vs. Union of India) (1989) 1 SCC 101 (Municipal Corporation of Delhi Vs. Gurnam Kaur) (1991) 4 SCC 139 (State of U.P. Vs. Synthetics and Chelicals) (2004) 1 SCC 712 (Dharam Dutt Vs. Union of India) 2004 (2) GLT 718 (State of Manipur Vs. Arambam Kameshwar Singh) (2001) 4 SCC 433 (P. Mohan Reddy Vs. E.A.A. Charles) 25. Learned Advocate General, Assam while defending the impugned Rule i.e. Rule 24 (1) (ii) made the following submission: (i) Admitting that there was anomaly in fixing the seniority of the classical teachers and that various letters were issued according to the need of the situations, he submitted that the matter has been set at rest by the impugned Rule. (ii) The letter dated 3.8.90 was a circular and not a mere letter. Prior to issuance of the said letter dated 3.8.90, the classical teachers were not in any cadre and they were holders of ex-cadre posts. It was only by the said circular dated 3.8.90, they were included in the graduate cadre. (iii) As a consequence of such inclusion/ encadrement of the classical teachers with that of graduate teachers, they were rightly given seniority with effect from 3.8.90 and Rule 13 of the aforesaid Rules of 1982 laying down the criteria for fixation of seniority had no application. 26. As regards the merit of the case, Mr. S.N. Sarma, learned Sr. Standing Counsel, Education Department fairly submitted that the Annexure-m letter dated 4.5.2001 in WP(C) No. 7125/2003 was issued not as a general proposition relating to determination of seniority of the classical teachers with effect from 3.8.90 but was issued on the basis of representations submitted by some teachers in the graduate cadre to the Minister, Education. He submitted that the letter dated 3.8.90 had to be issued in view of the representation made by the petitioner's association for treating them at par with that of other teachers in the graduate cadre. He submitted that the letter dated 3.8.90 had to be issued in view of the representation made by the petitioner's association for treating them at par with that of other teachers in the graduate cadre. Placing reliance on the records produced by him, he submitted that although the teachers in the graduate cadre are not appointed as "graduate teacher" but are appointed as "Assistant Teacher" either in the graduate scale of pay or in the intermediate scale of pay, so far as the classical teachers are concerned, they are in a different cadre, irrespective of the nomenclature/ expression used regarding their appointment. He finally submitted that the classical teachers having been included in the graduate cadre as per their own demand with effect from 3.8.90, they cannot claim for counting of seniority in the graduate cadre from their initial date of appointment 27. Mr. K.N. Choudhury, learned Sr. Counsel appearing for the respondent No. 4 in WP(C) No. 7125/2003 referring to the affidavit-in-opposition filed and the various documents annexed thereto, submitted that the cadres of classical and graduate teachers all along formed two distinct and separate cadres and it was only by amendment to 1982 Rules brought by notification dated 30.12.91, the classical teachers having bachelor degree were included in Grade-IV along with the other graduate teachers and thus they would get seniority only from 30.12.91 and not from 3.8.90. 28. As against his initial submissions in tune with the submissions made by the learned Advocate General, Assam that the classical teachers were not included in any cadre and they were holders of ex-cadre posts till issuance of the letter dated 3.8.90 encadering them along with other graduate teachers,, Mr. Choudhury, with the filing of the affidavit-in-opposition during the course of hearing of the case submitted that as per the provisions of the aforesaid Rules of 1979, the classical teachers were in a different group/cadre than that of the graduate cadre and they were included in the graduate cadre only by the aforesaid amendment to 1982 Rules in 1991. As regards the submissions made in respect of parity in pay scale of both the group of teachers, he submitted that such parity in pay scale would not bring both the groups at par so far as the status is concerned. 29. Placing reliance on the judgment of the Division Bench in Writ Appeal No. 476/ 2002 (Sri Khalilur Rahman Vs. 29. Placing reliance on the judgment of the Division Bench in Writ Appeal No. 476/ 2002 (Sri Khalilur Rahman Vs. State of Assam & Ors.) delivered on 28.7.2004, Mr. Choudhury submitted that the issue is no longer res-integra and has been conclusively decided by the Division Bench. Placing reliance on the decision of the Apex Court as reported in (2002) 1 SCC 1 (Pradip Chandra Parija Vs. Pramod Chandra Patnaik), he submitted that in case of emergence of a situation in which the said Division Bench judgment requires distinction, the matter will have to be referred to a Co­ordinate Bench, instead of deciding the matter on merit. However, he admitted that the Rule was not under challenge in that proceeding unlike the present proceeding in which the Rule itself is under challenge. According to him, the classical teachers cannot get the benefit of their teaching experience and earlier years of service prior to their inclusion in Grade-IV of the service along with the graduate teachers. He also placed reliance on the decision of the Apex Court as reported in (2001) 4 SCC 433 (P. Mohan Reddy Vs. E.A.A. Charles). Placing reliance on the decision of the Apex Court in the case of State of Maharashtra Vs. Purushottam as reported in (1996) 9 SCC 266 , he finally submitted that the services rendered by the Senior Classical/Hindi teacher with Bachelor degree in another cadre cannot be counted towards seniority in the Graduate cadre. 30. Mr. A.S. Choudhury, learned Sr. Counsel appearing for the petitioner in WP(C) No. 3971/2002 also made elaborate arguments in support of the letter dated 3.8.90 and the consequences thereof. He submitted that such fixation of seniority of the classical teachers from a particular date cannot be said to be arbitrary or unreasonable. On the other hand Dr. B. Ahmed, learned counsel for the petitioner in WP(C) No. 2825/2004 tracing back the history of the service of the teachers submitted that with the provincialisation of the schools, the services of all existing employees/ teachers were provincialised and with such provincialisation of the services of all the teachers, there is no question of branding the classical teachers who in fact are the teachers in the graduate cadre as holders of ex-cadre posts. He placed reliance on the decisions of this Court as reported in 2002 (1) GLT 76 (Ashish Kumar Sengupta Vs. He placed reliance on the decisions of this Court as reported in 2002 (1) GLT 76 (Ashish Kumar Sengupta Vs. State of Assam & Ors) and 2002 (3) GLT 515 (Dibya PrasadNath Vs. State of Assam & Ors.). 31. Mr. S. Sarma, learned counsel for the petitionerin WP(C)No. 7191/2002 submitted that the admitted position of giving seniority to the petitioner from his initial date of appointment in the graduate cadre could not have been obliterated on the strength of the letter dated 3.8.90 which has since been incorporated in the impugned Rule. Placing reliance on the seniority list annexed to the writ petition and the fact that the petitioner being the senior most teacher in the school next to the Principal-incharge was allowed to function as the Vice-principal, he submitted that his such seniority could not have been put to jeopardy without affording any opportunity of being heard. He placed reliance on the decisions of the Apex Court as reported in (1998) 1 SCC 318 (State of T.N. Vs. K. Sabanayagam) and (2004) 7 SCC 68 (Godawat Pan Masala Vs. Union of India & Ors.). 32. With the factual aspects of the matter and the elaborate submissions made by the learned counsels for the parties, the question relating to determination of seniority of the classical teachers with bachelors degree in the touchtone of the letter dated 3.8.90 which has been made the foundation of Rule 24 (l)(ii) of the aforesaid Rules of 2003 will have to be judged. The Act and the Rules referred to by the learned counsels for the parties are as follows: (i) The Assam Secondary Education (Provincialisation) Act, 1977 (ii) The Assam Secondary Education (Provincialisation) (Service & Conduct) Rules, 1979 (iii) Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules, 1979 (iv) The Assam Secondary Education (Provincialised) Service Rules, 1982 (v) The Assam Secondary Education (Provincialised) Service (Amendment) Rules, 1991 33. The Assam Secondary Education (Provincialisation) Act, 1977 is the parent Act and the same was enacted to provide for the Provincialisation of Secondary Education covered by the Deficit Scheme of the Government of Assam. Under Section 2 of the Act the following definitions amongst others have been made. (i) "appointed day " -in relation to any area means the day on which this Act comes into force in that area. Under Section 2 of the Act the following definitions amongst others have been made. (i) "appointed day " -in relation to any area means the day on which this Act comes into force in that area. (ii) "date of appointment "-means in relation to any employee, the date on which he joined the service of a school imparting Secondary Education on and from the date of its coming under adhoc system of grants-in-aid. (iii) .... (iv) .... (v) "employee " - means a person in the employment of a school working against a regularly sanctioned post and whose appointment has been approved by the school authority wherever such approval was necessary. (vi) "existing employee" - means an employee who is, on the appointed day, in the regular pay roll, employee against regular sanction and whose appointment has been approved by the school authority (vii) .... (viii) .... (ix)...... (x) "secondary education " - means education imparted upto Class XII in different types of schools including Middle English Sdchools, Middle Madrassas, High Madrassas, and Higher Secondary Schools; (xi) "secondary school" - means a deficit school where the secondary education is imparted; 34. As per provisions of Section 3 of the Act, all employees of all secondary schools in the State of Assam shall be deemed to have become employees of the State Government of Assam with effect from the date of appointment on the terms and conditions, which are as follows: (1) All rules including service rules and rules of conduct and discipline which are applicable to Government servants of corresponding ranks shall be applicable to all employees. (2) All employees shall get such emoluments as salary and allowances as may be prescribed: Provided that no employee shall get as emoluments any amount which is less than the amount he was getting immediately before appointed day. (3) Services of all the employees shall be encadred in appropriate cadres in accordance with the rules framed by the State Government for this purpose. (4) The inter-se seniority of the employes of a cadre or class sxhall be determined on the basis of principles laid down in the rules framed under this Act. 35. Rule 2 (iii) of the Assam Secondary Education (Provincialisation) (Service and Conduct) Rules, 1979 defines "sanctioned post" - to be the post sanctioned by Government in a particular secondary school. (4) The inter-se seniority of the employes of a cadre or class sxhall be determined on the basis of principles laid down in the rules framed under this Act. 35. Rule 2 (iii) of the Assam Secondary Education (Provincialisation) (Service and Conduct) Rules, 1979 defines "sanctioned post" - to be the post sanctioned by Government in a particular secondary school. "Period of service" as defined in Rule 2 (iv) means the period of continuous service against a sanctioned post and approved by the School Authority. Rule 3(iii) and (v) provide for encadrement of service and seniority of employees in respect of a cadre or class with effect from date of recognition of the school. As regards the services, Rule 2 (vii) (viii) (ix) and (x) define the same as follows: "(vii) "Assam Lower School Service" means the service to which Intermediate/ Matric scale of pay is admissible; (viii) "Assam School Service Class II (Junior)" means the service to which Graduate Scale of pay is admissible; (ix) "Assam School Service Class II (Senior)" means the service to which Senior Grade Pay-scale is admissible; (x) "Assam School Service Class F' means the service to which the Principals of Higher Secondary Schools is admissible;" > 36. As per Rule 3 (vi) of the said Rules, the cadre of the employees shall be the cadre held on the date of provincialisation in the cadre shown in Schedule-I. Schedule-I of the Rules enumerates the posts in Assam School Service with requisite qualification and method of appointment. Serial Nos. 7 and 8 of the Schedule incorporate the Assistant Graduate Teacher (Junior) (Non-gazetted) and Assam Lower School Service (ALSS) teachers in Secondary School, which services have been defined in Section 2 (vii) and (viii) as quoted above. So far as these two classes are concerned, the distinction is in respect of the scale of pay. While the ALSS teachers belongs to the service to which intermediate/ matric scale of pay is admissible, the ALSC, II (Junior) teachers belong to the service in which the graduate scale of pay is admissible. Thus the said two scales can be identified as intermediate scale of pay and graduate scale of pay. We are not concerned with the ASSCII (Senior) and ASSCI services in this proceeding. Serial No. 9 of the said schedule indicates other language/craft/ classical teacher of secondary schools. 37. Thus the said two scales can be identified as intermediate scale of pay and graduate scale of pay. We are not concerned with the ASSCII (Senior) and ASSCI services in this proceeding. Serial No. 9 of the said schedule indicates other language/craft/ classical teacher of secondary schools. 37. In supersession of the earlier Rules, which naturally included the aforesaid Rules of 1979, the Assam Secondary Education (Provincialised) Services Rules, 1982 was promulgated regulating the conditions of service of the teachers of the secondary schools. Rule 2 of the said Rules defines various expressions. As per such definition, "cadre" means the cadre of the service as shown in Rule 3 and Schedule-I of the Rule. "Period of service" means the period of continuous service from the date of appointment as defineding the Act. "Service" means the Assam Secondary Education (Provincialised) Service. The class and cadre as enumerated in Rule 3 of the Rules shall consist of the Grades including Grade-IV, which is the centre of controversy in these proceedings. Rule 3 (1) (e) Class-in (Non-gazetted), which was substituted as Rule 3 (1) Grade-IV by the amendment of 1991 reads as follows: "(e) Class-Ill (Non-gazetted) (i)graduate teachers of Higher Secondary and multipurpose schools, High Schools hereinaf­ter called graduate teachers, (if) Graduate teacher of High Madrassa (iii)Junior teachers of higher Secondary and Multipurpose Schools and High School here­inafter called as junior teacher (iv) Junior teacher of High Madrassa " 38. After the amendment of 1991, Rule 3 (1) Grade-IV read as follows: "Grade-IV- Graduate teacher of Higher Second­ary and Multipurpose school or High School or High Madrassa and Senior Classical Teacher or Senior Hindi Teacher having bachelor degree as general qualification (only the category shown in serial No. 4 of the Schedule-II), here­inafter called Graduate Teacher only (Non-gazetted)". 39. Serial No. 4 of Schedule-n names the post of Senior Classical Teacher/Senior Hindi Teacher to be in the cadre of Grade-IV with qualification - graduates with Hindi/Sanskrit/Arabic/Persian as one of the subject. Other Graduate Teachers are also included in the cadre of Grade-IV. In fact the Grade-IV as enumerated in Schedule-I of the aforesaid Rules incorporates the graduate teachers of Higher Secondary and Multipurpose School, graduate teachers of High School and High Madrassa and the Senior Classical teacher/Senior Hindi teacher (only thecategory in serial No. 4 of Schedule-II). The pay scale prescribed for the all these posts are Rs. 1375/- to 3375/-. In fact the Grade-IV as enumerated in Schedule-I of the aforesaid Rules incorporates the graduate teachers of Higher Secondary and Multipurpose School, graduate teachers of High School and High Madrassa and the Senior Classical teacher/Senior Hindi teacher (only thecategory in serial No. 4 of Schedule-II). The pay scale prescribed for the all these posts are Rs. 1375/- to 3375/-. While the qualification for other graduate teacher as indicated in Schedule-n is Bachelor of Arts, Bachelor of Science or Bachelor of Commerce, in case of Senior Classical Teacher/Senior Hindi teacher, the qualification indicated is graduate with Hindi/ Snskrit/ Arabaic/Persian as one of the subject, meaning thereby that the qualification prescribed for them is also Bachelor of Arts. 40. Grade-V of Schedule-I of the Rules also in the same pay scale included the posts of Senior Classical Teacher or Senior Hindi Teacher (only the category as shown in serial No. 5 in Schedule-II. Serial No. 5 of Schedule-II includes the post of Senior Classical Teacher/Senior Hindi Teacher in Grade-V cadre with qualification- " Assam Madrassa Final (Fazil) from Assam Madrassa Board or its equivalent examination passed from a recognized Board/Sastri exami­nation passed from Assam Sanskrit Board or its equivalent from any recognized Board/HSLC examination passed and Proveen Rastra Bhasa Ratna, Sahitya Ratna and its equivalent exami­nation passed from recognized University in case of Senior Hindi Teacher". 41. With the aforesaid substitution of Rule 3 by the 1991 amendment, no separate Rules of seniority was laid down for the Classical Teachers and Rule 13 continued to determine the seniority of the incumbents bom in different cadres. This aspect of the matter will have to be considered bereft of the first leg of argument of the petitioners (Classical Teachers) that they had all along been borne in the graduate cadre. The definitions of the Rules of 1979 as quoted above defined Assam School Service Class-II (Junior) as the service to which graduate scale of pay was admissible. Assam Lower School Service is defined as the service to which intermediate/matric scale of pay was admissible. The graduate classical teachers were not shown separately in any other cadre/ service. The definitions of the Rules of 1979 as quoted above defined Assam School Service Class-II (Junior) as the service to which graduate scale of pay was admissible. Assam Lower School Service is defined as the service to which intermediate/matric scale of pay was admissible. The graduate classical teachers were not shown separately in any other cadre/ service. The distinction of the two cadres being based on the scale of pay only i.e. the graduate scale of pay and the intermediate scale of pay and the classical graduate teachers being paid the graduate scale of pay, it is the assertion of the classical teachers who are graduates that they belong to the graduate cadre i.e. the Assam School Service Class-11 (Junior). Such assertion made by the classical teachers cannot be said to be without any foundation having regard to some of the orders of appointment made in their favour as were produced by none other than the learned Sr. Standing Counsel, Education Department Mr. S.N. Sarma. 42. The copies of four appointment orders all dated 9.11.99 issued by the Director of Secondary Education, Assam towards appointment of four teachers as classical teacher in Arabic, Persian, Sanskrit and as Hindi teacher respectively described such appointment to be in Class-II (Junior) teacher. Such appointments were made in favour of Sayd Khairui Alom Samsuddin, Md. Ismail Ali, Smt. Satyabati Goswami Sarma and Ms. Anjumoni respectively. The contents of the appointment orders being the same except the subjects like Arabic, Persian, Sanskrit and Hindi, one such order is quoted below: "GOVT. OF ASSAM OFFCE OF THE DIRECTOR OF SECONDARY EDUCATION: ASSAM KAHILIPARA, GUWAHATI-19 ORDER No. 121 On recommendation of the Selection Commit­tee constituted by the Govt. vide Govt. Notifi­cation No. B93)S-605/94/15 dated 11.4.97 Smti Satyabati Goswami Sarma, Vill-K.R.C. Road, Kumarpara, Guwahati-9, Dist-Kamrup, is hereby appointed temporarily as Sanskrit Teacher/Class H (Junior) m Govt. Girls High School, Tezpur in the scale of pay of Rs. 3580-8750/- P.M. plus other allowances as admissible under Rules Vice Shri KanakTamuli, retired. She is directed to join within 15 (fifteen) days from the date of receipt of the order. Sd/- Director of Secondary Education, Assam Kahilipara, Guwahati-19." 43. The aforesaid appointments in favour of the classical teachers in Arabic, Persian, Sanskrit and Hindi were made in ASSC -II (Junior), which means the service to which graduate scale of pay is admissible. She is directed to join within 15 (fifteen) days from the date of receipt of the order. Sd/- Director of Secondary Education, Assam Kahilipara, Guwahati-19." 43. The aforesaid appointments in favour of the classical teachers in Arabic, Persian, Sanskrit and Hindi were made in ASSC -II (Junior), which means the service to which graduate scale of pay is admissible. There is also no dispute that the classical teachers with Bachelors degree who form and constitute Grade-IV cadre of the service along with other graduate teachers all along enjoyed the same pay scale. Learned counsels for the parties did not dispute the same, although an endeavor was made by the respondent No. 4 in WP(C) No. 7125/2003 by annexing a document (Annexure-1 to the affidavit) to show that the classical teachers were in the scale of Rs. 580-1165/- as against the prescribed scale of Rs. 620-1315/- for the graduate teachers. The anomaly, which was created by such prescription of a lower scale for the graduate classical teachers was removed by the notification issued by the Government of Assam in the Finance (Pay Research Unit) Department. 44. There is also no dispute that the graduate teachers including the Senior Classical Teachers having Bachelor degree all along were in the same pay scale which was Rs. 200-500/- revised to Rs. 325-650/- in 1973. At that time the pay scale of the Hindi/ Classical teacher in Junior Grade was Rs. 140-275/-, which stood revised to Rs. 260-425/- in 1973. Pursuant to the pay revision effected in 1983, the said pay scales stood revised to Rs. 620-1315/- and Rs. 500-875/ - respectively. Initially, some anomaly took place by showing the revised pay scale of Senior Hindi/Classical Teachers as Rs. 580-1165/- on which the respondent No. 4 placed reliance. However, such anomaly was corrected by issuing necessary notification by the Finance Department as indicated above. The respondent No. 4 conveniently suppressed that aspect of the matter. 45. On perusal of the provisions of the aforementioned Rule including the respective schedules and the provisions of the Revision of Pay Rules issued from time to time, there is no dispute that the Senior Classical teachers (Senior Grade as described in the Pay Rules) with Bachelors degree and the other graduate teachers, all throughout were in the same pay scale. On perusal of the provisions of the aforementioned Rule including the respective schedules and the provisions of the Revision of Pay Rules issued from time to time, there is no dispute that the Senior Classical teachers (Senior Grade as described in the Pay Rules) with Bachelors degree and the other graduate teachers, all throughout were in the same pay scale. As per the provisions of 1979 Rules, the classification of two cadres i.e. intermediate and graduate cadre are on the basis of the pay scale only. As against the aforesaid graduate scale of pay, the scale of pay attached to the intermediate cadre was Rs. 260-425/-(revised fromRs. 140-275/-), which stood revised to Rs. 500-875/-, Thus it will be seen that the Senior Classical teachers/Hindi teachers with bachelor degree were all along classified with that of other graduate teachers so far as the pay scale is concerned. As in the case of intermediate cadre of the service, the Junior Grade Hindi/ Classical teachers were classified with the same pay scale i.e. the intermediate scale. Thus so far as the pay scale is concerned, the teachers in the intermediate cadre and the Junior Grade Hindi/Classical teachers used to get the same pay scale. 46. From the above, it will be seen that an Assistant Teacher in the aforementioned schools can either be in the intermediate scale of pay or in the graduate scale of pay and the classification of the two cadres is on that basis only. Had it been a case that, a classical teacher in the Senior Grade who is named as Senior Classical teacher enjoying the same scale of pay like that of any other Graduate teacher, belongs to a distinct a separate cadre than that of the Graduate teacher or as submitted by learned Advocate General, Assam belonged to ex-cadre and was encadred only by the said letter dated 3.8.90, the aforesaid teachers in respect of whom the appointment orders were produced by the learned Sr. Standing Counsel, Education Department could not have been appointed in the Assam School Service Class-II (Junior) which has been defined under the aforesaid Rules of 1979 as the service to which Graduate scale of pay is admissible. The whole confusion has arisen in view of identifying the Classical Teachers/Hindi Teachers irrespective of their different Grades as has been enumerated in Schedule-H of the Rules of 1982. The whole confusion has arisen in view of identifying the Classical Teachers/Hindi Teachers irrespective of their different Grades as has been enumerated in Schedule-H of the Rules of 1982. Under the said schedule altogether four categories of classical teachers have been enumeratedat serial No. 4,5,9 and 10. 47. The position relating to the Senior Classical Teacher/Senior Hindi Teacher, which appears at serial No. 4 and 5 has already been discussed above. The Junior Classical/Junior Hindi Teacher categorized to be in Cadre VI and VII is with the qualifications of HSSLC/PU with Hindi/ Sanskrit/Arabic/Persian as one of the subject and HSLC or its equivalent passed from recognized University/Board and Visharad/ Kovid/ Siksha Visharad/ Sahitya Bhusan or its equivalent examination passed from recognized Hindi Institution in respect of recognized teacher/Madhyamic passed from recognized Board, Assam Madrassa, Intermediate examination passed in respect of Junior Classical Teacher respectively. These two categories of teachers in Grade-VI and VII are in the pay scale of Rs. 1185-2395/-. Even in the ROP Rules of 1973 and 1983 on which the respondent No. 4 in WP(C)No. 7125/2003 placed reliance, the aforesaid category of Hindi/Classical teacher in Junior Grade was shown separately with the pay scale corresponding to intermediate scale of pay. 48. Placing reliance on the aforesaid ROP Rules of 1973 and 1983, the aforesaid respondent No. 4 wanted to project that a Classical teacher with Bachelor degree was not included in the cadre of Assam School Service (Junior) Class-II i.e. the Graduate cadre. However, such a plea gets nullified from the aforementioned appointment orders and also from the ROP Rules of 1973 itself wherein the Senior Grade Hindi/Classical teachers under the head "Miscellaneous post" in schools and colleges are only "for those with titles and in the case of Hindi propaganda or its equivalent examination in Hindi." Thus in this category the Senior Classical/Hindi teacher with Bachelor degree as enumerated under Grade-IV of the Rules of 1982 was deviously not included as they were already included under the said ROP Rules of 1973 under the head Class-II as Graduate teacher of High School. The said category of Senior Grade Hindi/Classical teacher was shown separately under Grade-V of the Schedule of the aforesaid Rules of 1982 with the same scale of pay as that of the teachers in the Graduate cadre, which naturally included the Graduate Classical teachers. 49. The said category of Senior Grade Hindi/Classical teacher was shown separately under Grade-V of the Schedule of the aforesaid Rules of 1982 with the same scale of pay as that of the teachers in the Graduate cadre, which naturally included the Graduate Classical teachers. 49. The above aspect of the matter also answers the submissions made on behalf of the respondent No. 4 in WP(C) No. 7125/ 2003 that serial No. 9 in Schedule-I of the Rules of 1979 included even the Senior Classical teachers with Bachelor's degree. The said category at serial No. 9 invariably meant the Class of teachers not included in the Graduate cadre with Graduate Scale of Pay. This will also be evident from Annexure-1 to the affidavit-in-opposition filed by the respondent No. 4 wherein the language and craft teachers were shown in the pay scale of Rs. 500-875/- unlike the Graduate teachers including the Classical teachers with Bachelor's degree shown in the pay scale of Rs. 620-1315/-. Regarding the pay anomaly, the matter has already been dealt with and there is no dispute now that the teachers in the Graduate cadre including the Senior Classical teacher with Bachelor degree were in the pay scale of Rs. 620-1315/- at that relevant point of time which has since been revised with time to time revision of pay. 50. The Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules, 1979 was framed in exercise of the powers conferred by Section 7 of the Assam Secondary Education (Provincialisation) Act, 1977 for provincialisation of services of employees. Definition 2 (v) of the Definitions defines "Graduate" as a person holding a Bachelor's degree in Arts, Science or Commerce stream from a recognized University. Rule 3 dealing with the eligibility of High Schools for provincialisation laid down amongst others the requirement of one Graduate with classical subject in his degree course or holder of matric title for every classical subject. Thus a Graduate with classical subj ect cannot be treated at par with a matric titleholder. A Graduate with classical subject also undoubtedly comes within the aforesaid definition of Graduate, he being a Bachelor of Arts. Thus a Graduate with classical subj ect cannot be treated at par with a matric titleholder. A Graduate with classical subject also undoubtedly comes within the aforesaid definition of Graduate, he being a Bachelor of Arts. Thus classical teachers with Bachelor's degree fulfilled all the criterias of a Graduate teacher to be included in Assam School Service Class-II (Junior) and yet they are sought to be projected as either not belonging to any cadre or belonging to the Assam Lower School Service to which intermediate/matric scale of pay is admissible which is also the scale of the aforesaid two categories i.e. Junior Classical/Junior Hindi teacher belonging to Grade-VI and VII as enumerated in Schedule-I and n of the Rules of!982. 51. With the above revelations made from the factual and legal aspect of the matter, there is no room for an argument as was advanced by the learned Advocate General, Assam that the Classical teachers with Bachelor degree were holders of ex-cadre posts till issuance of the letter dated 3.8.90. In fact, all other learned counsel for the parties agreed during the course of hearing that it would not be fair to submit that the said category of teachers were holders of ex-cadre post. With the passing of the Act of 1977 and the Rules thereunder regarding provincialisation of service, there is no question of branding the said category of teachers as holders of ex-cadre post or in the category of ex-cadre. Various definitions enumerated above with further stipulations that the services of all existing employees got provincialised; there is no scope for the said argument. This argument of the learned Advocate General, Assam with his further argument that the Classical teachers with Bachelor degree were en-cadred for the first time with the issuance of the letter dated 3.8.90 having been answered as above, I now deal with the question as to whether the said letter could be said to be a circular, which was also the issue framed by order dated 16.6.2004 passed in WP(C) No. 3971/2002. 52. The aforesaid letter dated 3.8.90 was by the Government of Assam in the Education Department under the signature of the Deputy Secretary. The letter was so issued to the DSE, Assam in reference to his letter dated 26.6.90. The records produced by the learned Sr. 52. The aforesaid letter dated 3.8.90 was by the Government of Assam in the Education Department under the signature of the Deputy Secretary. The letter was so issued to the DSE, Assam in reference to his letter dated 26.6.90. The records produced by the learned Sr. Standing Counsel, Education Department revealed that there was resentment amongst the Classical teachers with Bachelor degree for non-inclusion of their names uniformly alongwith other Graduate teachers for consideration of their case for promotion to next higher grades. It was in that context the letter under reference dated 26.6.90 was issued. It was in response to the said letter, the letter dated 3.8.90 which has given rise to the whole controversy was issued. The Grievance raised by the Classical teachers was in respect of non-consideration of their case at times for promotion and it was in that context the letter dated 3.8.90 was issued. The said letter while indicating their inclusion in the cadre of general teachers for giving benefit of promotion to higher posts never indicated anything regarding fixation of seniority of those teachers. It was in this context, learned counsel for the petitioners in WP(C)No. 7125/2003 argued that the letter dated 3.8.90 was never intended to have the effect of encadrement of the Classical teachers with that of the cadre of Graduate teachers. 53. Having regard to the Classes of teaches as enumerated and discussed above, there is no room for identifying the other Graduate teachers and the Classical teaches with Bachelor degree as belonging to two separate cadres for identification as Classical teachers and general teachers. Nowhere in the aforesaid Act and the Rules, the Graduate teacher has been defined as general teacher. Be that as it may, can the said letter be said to be a circular of general application is the moot question. Learned Advocate General, Assam submitted in reference to Rule 12 of the Assam Rules of Executive Business that the said letter dated 3.8.90 is a circular, the same having been signed by the Deputy Secretary of the Department. Such an argument is fallacious. Rule 12 itself provides that every order or instrument of the Government of State shall be expressed to be made in the name of the Governor. Admittedly, the letter dated 3.8.90 has not been issued in-the name of the Governor. Such an argument is fallacious. Rule 12 itself provides that every order or instrument of the Government of State shall be expressed to be made in the name of the Governor. Admittedly, the letter dated 3.8.90 has not been issued in-the name of the Governor. It will be important to note that at the time of issuance of the said letter dated 3.8.90 thepre-amendedRules of 1982 was very much in existence of which a reference has been made in the later part of thisjudgment. 54. Part-I of the aforesaid Rules of Executive Business dealing with allocation and disposal of business, lays down in Rule 8 that subject to the orders of the Chief Minister under Rule 14, all cases referred to in the Second Schedule to the Rules shall be brought before the Cabinet in accordance with the provisions of the Rules contained in Part-n. Rule 14 lays down that all cases referred to in the Second Schedule shall be submitted to the Chief Minister after consideration by the Minister, with a view to obtaining his orders for circulation of the case under Rule 15 or for bringing it up for consideration at the meeting of the Cabinet. Rule 15 authorizes the Chief Minister for referring the matter, instead of being brought up for discussion at a meeting of the Cabinet, to all the Ministers by way of circulation. Rule 10 of the Rules mandates that no department shall, without previous consultation with the Finance Department, authorize any orders which amongst others relate to the number or grading of cadre or post or the emoluments or other conditions of service or post. Under Chapter-C of the Rules, it is the Personnel Department, which will be responsible for seeing that the Rules and principles relating to services in general are properly followed. Second Schedule to the Rules interalia provides for proposal for the making or amending Rules regulating the recruitment and conditions of service of person appointed to the Public Service and post in connection with the State (proviso to Article 309). 55. Amidst the aforesaid formalities required to be carried out in respect of alteration of conditions of service, can it be said that the fate of the Senior Classical teachers with Bachelor degree was decided by a stroke of pen with the issuance of the aforesaid letter dated 3.8.90 and also can it be said to be a circular. 55. Amidst the aforesaid formalities required to be carried out in respect of alteration of conditions of service, can it be said that the fate of the Senior Classical teachers with Bachelor degree was decided by a stroke of pen with the issuance of the aforesaid letter dated 3.8.90 and also can it be said to be a circular. Apart from the fact that any such instrument under Rule 12 of the aforesaid Rules will have to be issued in the name of Governor, other formalities are also required to be carried out as enumerated in the aforesaid Rules of Executive Business. Thus I am of the considered opinion that the said letter dated 3.8.90 cannot be said to be a circular, firstly because the procedure to be followed towards issuance of a circular was not followed and secondly because the Rules of 1982 (Pre-amended) was very much in existence determining the service conditions of all existing teachers including the Senior Classical teachers and their past seniority could not have been obliterated by a stroke of pen and that too in complete violation of the rules of natural justice. 56. Apart from the above, the aforesaid letter dated 3.8.90 never spoke anything about fixation of seniority of the Senior Classical teachers. However, an interpretation was given to the said letter dated 3.8.90 by the aforementioned subsequent letters that the seniority of those teachers would count from 3.8.90. Such interpretation was given by Annexure-III letter dated 4.5.2001 in response to the representation submitted by few Graduate teachers as indicated in the letter itself to the Minister, Education. However, in the process, the same very respondents conveniently ignored the Annexure-II memorandum dated 6.2.97 which was issued by the Commissioner & Secretary in the Education Department. By the said memorandum dated 6.2.97, the letter dated 3.8.90 was clarified to the effect that the inclusion of the Senior Classical teachers indicated in the letter dated 3.8.90 would be with effect from the date of acquiring the requisite qualification. This memorandum was in the context of the kind of interpretation given by the official respondents to the contents of the said letter dated 3.8.90. This memorandum was in the context of the kind of interpretation given by the official respondents to the contents of the said letter dated 3.8.90. It is one thing as to whether the clarification conveyed by the said memorandum dated 6.2.97 and for that matter the meaning imported to the letter dated 3.8.90 itself was correct or not, but it is another thing to stick to the imported meaning of the said letter dated 3.8.90 totally ignoring the memorandum dated 6.2.97. 57. From the aforesaid discussions it can safely be concluded that the aforesaid letter dated 3.8.90 was neither a circular nor indicated en-cadrement of the Senior Classical teachers with Bachelor degree in the Graduate cadre for the first time. It also did not determine the seniority of the said teachers. En-cadrement of a service or amalgamation of one cadre with that of another cadre cannot be done in such a manner. Detail procedures are required to be followed in such a sensitive matter and the fate of the Senior Classical teachers could not have been decided by the said letter dated 3.8.90 addressed to the DSE, Assam. At best it could be said to be a clarification regarding entitlement of the said teachers to be considered for promotion at par with that of other Graduate teachers because of the distinction sought to be projected in their case projecting them to be a Class by themselves not included in the cadre of Graduate teachers. 58. On perusal of the various provisions of the Act and the Rules aforementioned, the irresistible conclusion is that, apart from the other cadres enumerated therein and so also under the ROP Rules, two other cadres were the ALSS to which intermediate/matric scale of pay was admissible and ASSC Class-II (Junior) to which Graduate scale of pay was applicable. There cannot be any escape from the conclusion that the Senior Classical/Hindi teaches with Bachelor degree are Graduates like any other Graduates be it in the Arts, Science or Commerce stream. Merely because the said Senior Classical teachers had Hindi/Sanskrit/Arabic/Persian/Assamese/ Bodo etc. as one of the subjects of study leading to their Bachelors degree, they cannot be treated to be a different class with that of other Graduates who did not have anyone of the said subjects in their degree course. Merely because the said Senior Classical teachers had Hindi/Sanskrit/Arabic/Persian/Assamese/ Bodo etc. as one of the subjects of study leading to their Bachelors degree, they cannot be treated to be a different class with that of other Graduates who did not have anyone of the said subjects in their degree course. If the interpretation sought to be given by the official respondents is accepted, in a given case it may so happen that a simple Graduate who did not have anyone of the said subject in his degree course will score a march over a Senior Classical/Hindi teacher having bachelors degree with much better performance like honours/distinction etc. in his degree course. This could not have been the intention of the rule making authority. 59. The records produced by the learned Standing Counsel, Education Department clearly indicate the proposal etc. for up gradation of senior most intermediate teacher having graduate qualification to the vacant Graduate posts. Such proposal would also cover the case of those Senior Classical teachers with Bachelor's degree who might have been working in the intermediate scale of pay. There was also proposal for up gradation of the intermediate post of Secondary Schools including Hindi, Arabic, Sanskrit and language teachers to Graduate post, for those teachers who were Graduates. The records neither indicate that the Senior Classical/Hindi teachers with Bachelor degree enjoying the Graduate scale of pay were in a different cadre or holders of ex-cadres post. It is true that the Association who are the petitioners in WP(C) No. 7125/2003 made representations for treating the Senior Classical teachers with Bachelor degree at par with that of other Graduate teachers for the purpose of promotion. It is also equally true that the said Association also espoused the cause of other category of Senior Classical/ Hindi teachers enumerated as Grade-V in the aforesaid Rules of 1982 and other Junior Classical/Hindi teachers enumerated as Grade-VI and VII in the said Rules. Such representation made by the petitioner for removing the confusion towards their right of consideration for promotion cannot be said to be a prayer for their en-cadrement with that of other Graduate teachers inasmuch as they were already in the Graduate cadre with Graduate scale of pay. Their Annexure-V representation dated 12.12.2001 and the one amongst others dated 30.7.2002 available in the records makes the position clear. Their Annexure-V representation dated 12.12.2001 and the one amongst others dated 30.7.2002 available in the records makes the position clear. In the said representation dated 30.7.2002, the petitioner's association highlighted as to how they were already included in the graduate cadre with seniority in terms of Rule 13 of the 1982 Rules and as to how a wrong interpretation was given to the letter dated 3.8.90. In any case, there cannot be any estoppel against law. 60. The records produced by the learned Standing Counsel, Education Department also revealed that the petitioners in WP(C) No. 7125/2003 made series of representations against the kind of interpretation sought to be given to the said letter dated 3.8.90. As noticed above, in between the petitioners also filed writ petitions on the basis of which interim protections were granted. However, as submitted by the learned counsels for the parties, those writ petitions were withdrawn in view of the challenge to the impugned Rules, which according to the petitioners would finally decide the controversy relating to seniority of the Senior Classical/Hindi teachers having Bachelor degree. It appears that inspite of the interim orders passed, the official respondents, more particularly the DSE, Assam was adamant to stick to the kind of interpretation, which is being projected in these proceedings and it was solely on the basis of his note without assigning any reason as to why the seniority would count from 3.8.90 obliterating entire earlier length of service, the Annexure-III letter dated 4.5.2001 approving seniority from 3.8.90 was issued. Be that as it may, the same may not detain us in resolving the controversy. 61. The fact that a Senior Classical teacher with Bachelor's degree is borne in the Graduate cadre is further fortified from the records in which an order of regularization of service of a Classical teacher against a Graduate post in the same pay scale of Rs. 1375-3375/- is available. The orders of such regularization and granting of Graduate scale of pay to the incumbent with retrospective effect by orders dated 18.5.96 and 7.9.96 read as follows: "GOVT. OF ASSAM OFFICE OF THE DIRECTON OF SECONDARY EDUCATION: ASSAM:::KAHILIPARA:::GUWAHATL ORDER Under the authority of the Govt. orders issued vide No.(3)S.984/93/26 dtd. 15.5.96 and No. PMA221/92/Part-XI/74dtd. 1375-3375/- is available. The orders of such regularization and granting of Graduate scale of pay to the incumbent with retrospective effect by orders dated 18.5.96 and 7.9.96 read as follows: "GOVT. OF ASSAM OFFICE OF THE DIRECTON OF SECONDARY EDUCATION: ASSAM:::KAHILIPARA:::GUWAHATL ORDER Under the authority of the Govt. orders issued vide No.(3)S.984/93/26 dtd. 15.5.96 and No. PMA221/92/Part-XI/74dtd. 15.5.96 the under­signed is hereby pleased to allot a Graduate Post for regularization of the service of Sri Ismail Hussain as Classical Teacher pf Barbari Milan High School, Morigaon with effect from 19.11.91 under usual pay and allowances. The post was originally created vide Govt. let­ter No. EPG.567/91/115 dtd. 16.11.91 and last . retained vide Govt. letter No. PMA.221/92/Part-XI/65 dtd. 23.8.95. The expenditure for the purpose is debitable to the head "2202-Genl.-Edn.II-Other State Plan and Non-Plan-Schemes-02-Secondary Educa-tion-800-Other Expenditure-(b)-Scheduled Caste Component Plan (Plan)" for the year 1996-97. Sd/-G.Talukdar Director of Secondary Education Assam, Kahilipara, Guwahati-19 Memo No. PTE/SC/Prov/2/96/4 Dated Kahilipara the 18* May'96" "GOVT. OF ASSAM OFFICE OF THE INSPECTOR OF SCHOOLS:MORIGAONDISTRICT CIRCLE MORIGAON::ASSAM ORDER As per Govt. order No. B(3)S 384/93/26, dtd. 15.5.96 and No. PMA-221/92/Part-xi/74, dtd. 15.5.96 and conveyed vide DSE's Assam's Memo No. PTE/SC/Prov/2/96/4, dtd. 18.5.96, Sri Ismail Hussain Classical Teacher of Borbori Milan High School is hereby allowed to draw the pay and allowances at the initial stage as shown below with effect from 1.5.96 as per ROP Rules, 1990. SI. No. Name of incumbent: Designation: Date of joining: Scale of pay 1. Sri Ismail Hussain Cl. Teach. 19.11.91 Rs.1375- Rs.3375/- Plus other allowa-nces admissible under rules. The post was originally created vide Govt. let­ter No. EPG.567/91/115/dtd. 16.11.91 and last retained vide Govt. letter No. PMA.221/92/Part-Xl/56,23.8.95. The expenditure for the purpose is debitable to the Head "2202-Genl.-Edn.II-Other State Plan and Non-Plan-Schemes-02-Secondary Educa-tion-800-Other Expenditure-(b)-Scheduled Caste Component Plan (Plan)" for the year 1996-97. SdAMrs. L. Laskar Inspector of Schools; Morigaon District Circle: Morigaon 62. I now proceed to deal with the provisions of the pre-amended Rules of 1982. Section 2 (h) of the said Rules defines "period of service" as the period of continuous service from the date of appointment as defined in the Act. Section 2 (k) defines "service" as the Assam Secondary Education (Provincialised) Service. I now proceed to deal with the provisions of the pre-amended Rules of 1982. Section 2 (h) of the said Rules defines "period of service" as the period of continuous service from the date of appointment as defined in the Act. Section 2 (k) defines "service" as the Assam Secondary Education (Provincialised) Service. Section 3 (l)(e) Class-El (Non-gazetted) included the class and cadre as follows: "(i)Graduate teacher of Higher Secodnary and Multipurpose Schools, High Schools herein­after called Graduate teachers (ii) Graduate teacher of High Madrassa (iii)Junior teachers of Higher Secondary and Multipurpose Schools and High Schools here­inafter called as Junior teachers (iv) Junior teachers of High Madrassa " 63. Rule 8 dealing with the qualification for direct recruitment also indicated three categories of teachers viz. (i) Post Graduate teacher, (ii) Graduate teachers (iii) Junior teachers. Rule 9 of the said Rules of 1982 providing for recruitment by promotion to the post of Vice-principal laid down the criteria of 10 years and 12 years of teaching experience for the Post Graduate teachers and Graduate teachers respectively. Likewise, the post of Assistant Headmaster and Assistant Superintendent of High Madrassa was to be filled up from amongst the Graduate teachers having 10 years continuous teaching experience. Rule 13 of the said Rules determined the seniority on the basis of date of continuous appointment, date of joining and date of birth. Schedule-I to the Rules prescribed the pay scales for different cadre post under which serial number 8,9,10 and 11 made the only distinction of Graduate teachers and Junior teachers. Schedule-n laid down the qualification for Graduate teachers and Junior teachers as Bachelor of Arts, Science and Commerce and Intermediate/ Pre-University/Pre-Degree/ Matriculate/ Matric trained (in respect of existing teachers) respectively. 64. From the above, it will be seen that there was no separate cadre of Senior Classical/Hindi teachers with Bachelor degree and they being Graduates were included as Graduate teacher. Likewise, the other category of Classical teachers with intermediate scale of pay was included in the cadre of Junior teacher. In the said Schedule, the total cadre strength of Graduate teachers was indicated as 13,016 and that of Junior teacher as 1,292. Had it been a case of there being a separate cadre for Senior Classical/ Hindi teacher, it would have been shown separately with the cadre strength. A post and a cadre must not be construed to be one and the same. Had it been a case of there being a separate cadre for Senior Classical/ Hindi teacher, it would have been shown separately with the cadre strength. A post and a cadre must not be construed to be one and the same. When a post is a post in a cadre, a cadre may consist of various posts. 65. With the amendment of 1991 to the aforesaid Rules of 1982, the teachers in the Graduate cadre was re-classified with the enumeration of different categories included therein. In this connection Grade-IV of Rule 3 of the amended Rules indicating the class and cadre of the service has already been quoted above. In Grade-IV, both the categories i.e. the Graduate teacher and Senior Classical/Hindi teacher having Bachelors degree were shown together as Graduate teacher and in Schedule-I to the Rule the Graduate teachers of Higher Secondary and Multipurpose School, High School, High Madrassa and Senior Classical teacher or Senior Hindi teachers (only the category as shown in serial number 4 of Schedule-n were clubbed and shown together as Grade-IV cadre. Serial number 4 of Schedule-II concerning the Senior Classical/ Hindi teacher were shown in Grade-IV and the qualification prescribed was Graduate with Hindi/Sanskrit/Arabic/Persian as one of the subjects. In respect of other category of Graduate teachers, the qualification prescribed was Bachelor of Arts/ Science/ Commerce. Thus there is no manner of doubt that the Senior Classical/Hindi teachers included in Grade-IV along with other Graduate teachers were/are also Bachelor of Arts. Merely because they had one of the aforesaid subjects as their subject in degree course, they cannot be treated differently. The simple and logical meaning that the Senior Classical/Hindi teachers are Graduates or Bachelor of Arts cannot be interpreted in any other manner. 66. Learned counsel for the parties during the course of hearing agreed that there is no definite term of defining the Graduate teachers as could be gathered from the appointment orders. Normally they are appointed as "Assistant Teacher" and the pay scale is indicative as to whether the appointment is in the Graduate cadre or in the Intermediate cadre. From the appointment orders produced by the learned Standing Counsel, Education Department, such appointment is even found as "Assistant B.Sc teacher". Appointments are also made as Assistant teacher Arabic/Persian/Hindi/Sanskrit etc. Normally they are appointed as "Assistant Teacher" and the pay scale is indicative as to whether the appointment is in the Graduate cadre or in the Intermediate cadre. From the appointment orders produced by the learned Standing Counsel, Education Department, such appointment is even found as "Assistant B.Sc teacher". Appointments are also made as Assistant teacher Arabic/Persian/Hindi/Sanskrit etc. Such appointments are also made as Arabic teacher, Persian teacher, Hindi teacher, Sanskrit teacher etc., but in case of such appointment in the Graduate cadre, they are provided with the Graduate scale of pay. Such appointments are also made as Classical Teacher (Sanskrit/Arabic/Persinan) etc. In case of appointment in the intermediate scale of pay, such appointments are made as either Hindi teacher or Junior Hindi teacher etc. with intermediate scale of pay. 67. On the other hand, as per the copy of the appointment order dated 7.9.83 produced by the learned counsel for the petitioner in WP(C) No. 7125/2003 one Shri Gakul Chandra Goswami was appointed as Assistant Teacher in the Graduate scale of pay and in his service documents produced by the learned counsel, he was described as Assistant Teacher (Sanskrit)/Assistant Teacher: Sanskrit (Senior Grade). From such using of different nomenclatures in respect of the posts cannot be said to be appointments in different cadres. Different categories of posts in the Graduate cadre are the species of a genus which is commonly known as Graduate cadre. If the kind of argument advanced towards placement of the Senior Classical/Hindi teachers with Bachelor degree in a different group is to be accepted to make a distinction between them and the other Graduate teachers, then why not a Science teacher and other such specified teacher who are also Graduate be placed in a different category. It cannot be the prerogative of the Graduates who did not have any one of the said subjects in their degree course, no matter how they had faired in their examinations to claim that they alone form the Graduate cadre to the exclusion of all other Graduates. Learned counsel for the respondents could not answer as to in which cadre, the Senior Classical/Hindi teacher belonged to, if not in graduate cadre, in reference to the categorization of the cadres in 1979 Rules. 68. Learned counsel for the respondents could not answer as to in which cadre, the Senior Classical/Hindi teacher belonged to, if not in graduate cadre, in reference to the categorization of the cadres in 1979 Rules. 68. In the above context, it will be pertinent to mention here that it is an admitted position that in the past no distinction was made between a Graduate Classical/Hindi teacher in the Senior Grade and other Graduate teachers. Common seniority list are published including both the groups and showing their seniority on the basis of their respective dates of appointment. This position is amply demonstrated from the averments made in WP(C) No. 7125/2003 and the position which has emerged from documentary evidence adduced by the writ petitioners in WP(C) No. 2825/2004 and WP(C) No. 7191/2002. Even the issuance of the said letter dated 3.8.90 did not reverse the process and the Senior Classical/Hindi teachers continued to get their dues along with common seniority and promotion. The writ petitioner in WP(C) No. 2825/2004 was also selected for regular appointment as Asstt. Headmaster in 1998. Apart from such a factual position well depicted in the aforesaid two writ petitions, the petitioners in WP(C) No. 7125/ 2003 have made specific averments in paragraphs 8,9 and 34 of the writ petition which are as follows: "8. That the members of the petitioner associa­tion all have a bachelor degree as general qualification and they are serving as classical teachers of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. The petitioners all joined service prior to 1990 and as per their date of joining and continuous appointment, they are the senior most teachers in some schools eli­gible for being considered for promotion to the Grade of Principal and Vice Principal of Higher Secondary Schools and Headmaster of High Schools. 9...................... The seniority of these two classes of teachers were fixed in the same grade as per Rule 13 of the Rules. The seniority of the teachers was fixed on the basis of date of join­ing and date of continuous appointment and on the basis of the seniority so fixed, many classical/Hindi teachers have been promoted to higher grade of Principals, Vice Principals and Head Masters. 34. The seniority of the teachers was fixed on the basis of date of join­ing and date of continuous appointment and on the basis of the seniority so fixed, many classical/Hindi teachers have been promoted to higher grade of Principals, Vice Principals and Head Masters. 34. That the petitioners beg to state and submit that the selection for the post of Headmaster has already been completed on the basis of their seniority from the date of joining as graduate Classical teachers and unless the operation of the impugned Rule 24(2)(ii) of the Rules framed in 2003 is suspended/stayed, the members of the petitioners Association will suffer irrepa­rable loss and injury.” 69. The aforesaid specific pleas have not been denied either by the official respondents or by the respondent No. 4. During the course of argument also learned Advocate General Assam and the learned Senior Standing Counsel, Education Department did not dispute the said position, rather admitted the same. According to learned Advocate General, various orders were passed as per the demand of the situation and that no definite stand was adopted by the official respondents in the matter. However, he supported the impugned Rule by his submissions as referred to above. Thus, here is a case in which the Senior Classical/Hindi teachers with Bachelor degree who are included in the same and common seniority list of the respective schools along with other Graduate teachers, who also earned their promotions as Assistant Headmaster, Headmaster, Vice-principal and Principal on that basis are now sought to be deprived of such a position on the basis of an interpretation to the aforesaid letter dated 3.8.90 which has eventually culminated into the impugned Rules. Admittedly this has been done without hearing them in gross violation of the principles of natural justice. A service condition so intrinsically connected with their service career has been withdrawn with the final nail in the form of the impugned Rules. 70. Even if it is held that the Senior Classical/Hindi teachers were en-cadred or included in the Graduate cadre by the aforesaid letter dated 3.8.90 or by the amendment of 1991, can it be said that their earlier service got altogether obliterated for both seniority and experience. Teaching experience is intrinsically connected for career advancement as per the rules of promotion holding the field. Teaching experience is intrinsically connected for career advancement as per the rules of promotion holding the field. At the time of issuance of the aforesaid letter dated 3.8.90, the pre-amended Rules of 1982 was very much in existence. As noticed above, the aforesaid letter dated 3.8.90 itself did not indicate anything regarding fixation of seniority. Rule 13 of the pre-amended Rules of 1982, which continued to be same even after amendment laying down the criterias for inter-se seniority of the existing employees. Such criterias are date of continuous appointment, date of joining, date of birth. Such determination of seniority is in the respective cadre. Even if the argument that the Senior Classical/Hindi teacher came to be included in the Graduate cadre only with effect from 3.8.90 or with effect from 30.12.91 when the amendment was brought to the Rules of 1982 is accepted, there is no manner of doubt that by operation of Rule 13, the Senior Classical/Hindi teachers would get their seniority from their initial date of appointment and not from 3.8.90 or 30.12.91. This position also gets support from Rule 3(iii) and (v) of the 1979 Rules which speak of encadrement of services and seniority of employees from the date of recognition of the school. 71. Under a similar situation, a Division Bench of this Court in the case of Samiran Das Vs. State of Assam & Ors. as reported in 2001 (3) GLT344 held that the seniority would count from the date of initial appointment and not from the date when the amendment came into force. In that case the post of Chemical Inspector of Factories was amalgamated with the post of Inspector of Factories. At the time of commencement of the Assam Factories Rule, 1990, the post of Chemical Inspector was not a part and parcel of the service under the Rules and was an ex-cadre post. By notification dated 7.7.93 the said post of Chemical Inspector was included in the cadre of Inspector of Factories. Referring to the rules of seniority determining the seniority from the initial date .of appointment, the Division Bench of this Court held that the seniority of the Chemical Inspector would be counted from the date of initial appointment and not from the date, they were made part and parcel of the Rules of 1990 by the amendment of 1996. 72. Referring to the rules of seniority determining the seniority from the initial date .of appointment, the Division Bench of this Court held that the seniority of the Chemical Inspector would be counted from the date of initial appointment and not from the date, they were made part and parcel of the Rules of 1990 by the amendment of 1996. 72. Same is the case here, even if the argument that the said category of teacher was en-cadred or merged with the cadre of Graduate teacher. Rule 13 of the Rules of 1982 (both pre and post amended) undoubtedly leads to such irresistible conclusion. In that case, the Division Bench referred to various decisions of the Apex Court and the decision as reported in 1949 (2) AER 155 (Seaford Court Estates Ltd. Vs. Asher). In this connection, I may also refer to the observation of the Apex Court in the case of Mahadeo Oil Mills Vs. Sub-divisional Magistrate as reported in (1985) 4 SCC 343 which is as follows:- "I am aware of the well-settled rule of construc­tion, that the argument from inconvenience and hardship is a dangerous one and is only admis­sible in construction of statutory provisions where there are alternative methods of construc­tion. But another principle which has to be borne in mind is that if too literal an adherence to the words of an enactment appears to produce an absurdity and injustice, it will be the duty of the court of construction to avoid such a result in . case the enactment is capable of any other fair interpretation." 73. As noticed above, neither the letter dated 3.8.90 nor the re-classification made in Rule 3 of the 1982 Rules by the amendment in respect of the class and cadre did specify any other mode of fixation of seniority of the Senior Classical/Hindi teacher. Only Rule which held the field was Rule 13 of the Rules in terms of which the said category of teachers were entitled to count their seniority from their initial date of appointment. Neither the letter dated 3.8.90 nor the re-classification of class and cadre by Rule 3 of the aforesaid Rules of 1982 could have obliterated the mode of fixation of seniority by Rule 13.Eventherules or administrative orders which bring about . integration might provide for the principle and manner in which the seniority of the integrated employees are to be determined. Neither the letter dated 3.8.90 nor the re-classification of class and cadre by Rule 3 of the aforesaid Rules of 1982 could have obliterated the mode of fixation of seniority by Rule 13.Eventherules or administrative orders which bring about . integration might provide for the principle and manner in which the seniority of the integrated employees are to be determined. Needless to say that 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. Integration or merger of cadres necessarily implies that both the posts are equivalent. If that up so, even if it is held to be a case of en-cadrement of ex-cadre post or en-cadrement with mat of Graduate cadre, the Senior Classical/Hindi teachers cannot be meted out with the discrimination of altogether obliterating their past services both for seniority and experience. In the case of Joginder Nath Vs. Union of India as reported in (1975) 3 SCC 459 , the Apex Court made the following observations: "On their initial recruitment to the Delhi Judicial Service they retained their original seniority in­ter se as was assigned to them in their parent cadre. Was it possible to have a different yard­stick, some other date or shorter period for fixa­tion of the seniority of the law graduates judi­cial magistrates on their initial recruitment to the service? From which date their seniority ought to have been reckoned? Was it possible to treat them as the first and the new recruits to the Delhi Judicial Service? Even so what would have been the basis of determining their se­niority inter-se? The questions posed are sug­gestive of the answers. Taking the length of service rendered by the candidates in their re­spective cadres for the purpose of fixation of seniority under Rule 11 of the Delhi Judicial Service Rules was justified, legal and valid. Had it been otherwise it would have been discrimi­natory. It was not equating unequals with equals. It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi. For the purpose of fixation of seniority it would have been highly unjust and unreason­able to take the date of their initial recruitment to the service as their first appointment. It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi. For the purpose of fixation of seniority it would have been highly unjust and unreason­able to take the date of their initial recruitment to the service as their first appointment. Nor was it possible to take any other date in be­tween the period of their service in their parent cadre. It would have been, wholly arbitrary. In out judgment, there fore, there was no escape from the position that the entire length of ser­vice of the two classes of officers had got to be counted»for the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial Service. It was not possible or practical to measure their respective merits for the purpose of seniority with mathematical pre­cision by a barometer. Some formula doing larg­est good to the largest number had to be evolved. The only reasonable and workable formula which cold be evolved was the one en­grafted in Rule 11 of the Delhi Judicial Service Rules................. The object of the Delhi Judi­cial Service Rules was to create a service by integration of different classes of persons al­ready working as Judicial Officer. The fixation of seniority on the basis of length of service in their respective parent cadres had a rational nexus to the object intended to be achieved. 74. In the case of Tej Narain Swary Vs. State of Bihar & Ors. as reported in (1993) Suppl 2 SCC 623, the Apex Court dealing with the question of seniority on the basis of length of service held that the benefit of past service is admissible when an employee is compulsorily transferred to a new post or when an ex-cadre post is amalgamated with a cadre post. Holding the approach of the High Court to be not correct the Apex Court dealing with the facts of that case found that the appellant was compulsorily transferred from one post to another. The Apex Court observed that "the order is also capable of being interpreted as an order of amalgamation of the ex-cadre post of special officer with the cadre of section officers. The Apex Court observed that "the order is also capable of being interpreted as an order of amalgamation of the ex-cadre post of special officer with the cadre of section officers. As stated earlier, the consequence of both the interpretation of the said order is the same, viz, that the appellant would get seniority from the date of his appointment as the special officer." 75. The impugned Rule has been quoted above. Same is nothing but the replica of the contents of the letter dated 3.8.90. However, an addition has been made providing that seniority regarding classical teacher shall be counted from the date of issue of the said letter. Such addition has been made in the name of the said letter dated-3.8.90, although the said letter itself did not provide for determination of seniority. The position has already been discussed above and clarified. The said letter only spoke of providing promotional scope to the Senior Classical/ Hindi teachers by way of incorporating them along with the Graduate teachers. Same cannot mean any en-cadrement of ex-cadre post or en-cadrement with Graduate teachers as was respectively argued by the learned Advocate General, Assam and the learned Sr. Counsel for the respondent No. 4 in WP(C) No. 7125/2003. 76. By the said Rule the seniority to the said group of teaches has been provided with effect from 3.8.90 as if the said letter itself provided such seniority. In fact, it was only on the basis of representations made by some teachers in the Graduate cadre praying for clarification as to the effective date of seniority of the said Classical teachers, the matter was purportedly clarified by Annexure-in letter dated 4.5.2001. As noticed above, the representation was made to the Minister, Education and it was on that basis the said clarification was issued. While doing so, the Annexure-in Memorandum dated 6.2.97 was totally ignored. Thus, it was by the said letter dated 4.5.2001, seniority was directed to be counted with effect from 3.8.90 and not by the parent letter dated 3.8.90. This particular letter dated 4.5.2001 was stayed by this Court on the basis of writ proceeding initiated by the petitioners and inspite of such stay order, such fixation of seniority was insisted upon and in fact orders determining the seniority were passed. This particular letter dated 4.5.2001 was stayed by this Court on the basis of writ proceeding initiated by the petitioners and inspite of such stay order, such fixation of seniority was insisted upon and in fact orders determining the seniority were passed. While depriving the seniority to the said group of teachers in that manner, the same very respondents had even gone to the extent of providing retrospective seniority to the erstwhile intermediate teachers who were graduates vide Annexure-X dated 1.2.2003, although were not borne in the graduate cadre. Thus the discrimination is writ large on the face of it. 77. IntheRulesof2003(Annexure-XII), the Graduate teacher has been defined under Rule 2 (n) which unlike Grade-IV in Rule 3 of the 1982 Rules (amended) does not include the Senior Classical/Hindi teacher with Bachelor degree. Thus while defining the term "Graduate Teacher", the rule making authority excluded one category of Graduate teacher i.e. the said Classical teacher who was all along included in the Graduate cadre and more specifically with the classification by the amendment of 1991. However, while making the classification of class and cadre under Rule 3, the same very Classical/Hindi teachers have been included along with Graduate teachers under Class-n (Junior). Under Rule 14 (1) and 14 (2) of the Rules, provisions have been made for recruitment to the post of Vice-Principal/Headmaster etc., according to which the post of Vice-principal shall be filled up by promotion on the basis of combined seniority in the school among the Graduate and Post Graduate teachers with minimum 10 years teaching experience in case of Post Graduate teachers and 12 years in case of Graduate teachers. The post of Headmaster shall be filled up by promotion on the basis of school wise seniority on the recommendation of the State Selection Board. For both the purposes, the seniority shall be determined from the date of receiving Graduate scale as per Rule 24(2) (emphasis added). There is no dispute that the Senior Classical/Hindi teachers with Bachelor degree receive the Graduate scale of pay. 78. Rule24(l)of the Rules dealing with seniority provides counting of inter-se seniority of the teachers of Graduate and Post Graduate cadre in a school on the basis of continuous service in the school, date of joining, date of birth etc. There is no dispute that the Senior Classical/Hindi teachers with Bachelor degree receive the Graduate scale of pay. 78. Rule24(l)of the Rules dealing with seniority provides counting of inter-se seniority of the teachers of Graduate and Post Graduate cadre in a school on the basis of continuous service in the school, date of joining, date of birth etc. However, under Rule 24 (2) (ii), which is under challenge in this proceeding, provides for counting of seniority of the aforesaid Classical teaches with effect from 3.8.90. However, the Rule is silent as regards counting of teaching experience gathered by the said teachers prior to 3.8.90 and as to whether they would be eligible for promotion on the basis of teaching experience mentioned in Rule 14(1). 79. In Schedule-III(A) of the Rules under serial No. 6, the Graduate teacher and the aforesaid category of Classical teacher have been classified as Class-II (Junior) in Cadre IV with the same pay scale identifying the strength of the cadre as on June, 2002 as 22265. As in the amended Rules of 1982, the Senior Classical/Hindi teachers without general degree has been shown to be in Cadre-V with the same pay scale as that of the teachers in Grade-IV. The Junior teachers including Junior Classical/Hindi teachers have been shown in Cadre-VI. The posts of demonstrator and craft teacher have been shown as miscellaneous post. 80. From the above, it will be seen that although under definition of "Graduate Teacher", the Classical teacher with which we are concerned has not been included, but the said category has been included in the same cadre of Graduate teacher as per Rule 3 (b) (ii) of the Rules. They have also been so included in the aforementioned Schedule in Cadre-IV identifying them as Graduate teacher in the same scale of pay. However, so far as their seniority is concerned, simply by quoting the aforesaid letter dated 3.8.90 it has been provided by the impugned Rules that their seniority would be counted with effect from 3.8.90. It is not known as to how such a criteria was adopted by the rule making authority. However, so far as their seniority is concerned, simply by quoting the aforesaid letter dated 3.8.90 it has been provided by the impugned Rules that their seniority would be counted with effect from 3.8.90. It is not known as to how such a criteria was adopted by the rule making authority. Except the argument advanced by the learned Advocate General, Assam that the said category of teachers was en-cadred by the said letter dated 3.8.90 and thus was assigned seniority with effect from the said date, which argument, however, was not even agreed to and did not find favour with the other learned counsel, nothing is discernible in absence of any counter affidavit, inspite of the above quoted order of this Court passed on 16.6.2004 in WP(C) No. 3971/2002, the State respondents conveniently did not respond to the same. Except making arguments supporting the interpretation sought to be given to the said letter dated 3.8.90, no materials could be produced in support of the same and no assistance was forthcoming as was expected of the State in such a sensitive matter making the task of this Court heavier. I am prompted to quote the observation of the Apex Court in the case of S.L Rooplal Vs. Lt. Governor, Delhi as reported in AIR 2000 SC 594 regarding the role of the State in such matter. "Before concluding, we are cosntrianed to ob­serve that the role played by the respondents in this litigation is far from satisfactory. In our opinion, after laying down appropriate rules governing the service conditions of its employ­ees, a State should only play the role of an im­partial employer in the inter-se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should confine its role to that of an arhicus curiae by assisting the judicial fo­rum, to arrive at a correct decision. Once a deci­sion is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The, matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, filed review petition, appeal etc. Once a deci­sion is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The, matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, filed review petition, appeal etc. It gives an impression that it is es­pousing the cause of a particular group of em­ployees against another group of its own em­ployees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the respondent has taken more than necessary interest which is un­called for. This act of the State has only resulted in waste of time and money of all concerned." 81. In the aforesaid case the Apex Court also held that the service rendered on equivalent post in parent department before absorption in deputation department counts for seniority and the offending portion of the office memorandum, which denied benefit of previous service declared to be unconstitutional. In that case the appellant had challenged the constitutional validity of the memorandum on the ground that the same violated Articles 14 and 16 of the Constitution with the plea that the same arbitrarily took away the services rendered by them in equivalent post. The Apex Court upheld the contentions of the appellant holding that the right of the appellant could not have been taken away in the garb of the memorandum impugned in the proceeding. 82. Mr. O.K. Bhattacharyya, learned Sr. Counsel placed reliance on D.S. Nakara 's case (supra) primarily to bring home his argument that the fixation of date for counting seniority as 3.8.90 is arbitrary. In that case the Apex Court found on the basis of the written submission filed on behalf of the Union of India that not a single valid or relevant consideration much less any consideration relevant to selection of eligibility criteria was discernible. As in the said case, in the present case also, the tenor of the stand of the State, without answering the queries made by this Court and even without filing any affidavit is "we select the date and it is unquestionable; either take it or leave it as a whole." In that case the Apex Court while reading down the offending portions of the memoranda in question answered the question as to whether the same amounts to legislating in the negative. It observed that "when we delete basis of classification as violative of Article 14, we merely set at naught the unconstitutional portion retaining the constitutional portion ". 83. Dealing with the concept of equality and its facets, the Apex Court in the said case observed as follows: "13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classifica­tion. As was noticed in Maneka Gadhi case in the earliest stages of evolution of the constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in E.P. Royappa v. State of T.N., it was held that the basic principle which informs both Article 14 and 16 is equality and inhibition against dis­crimination. This Court further observed as under: From a positivistic point of view, equality is an­tithetic to arbitrariness. In fact equality and ar­bitrariness are shorn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and ins therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Ar­ticle 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. 15. Thus the fundamental principle is that Ar­ticle 14 forbids class legislation but permits reasonable classification for the purpose of legis­lation which classification must satisfy the twin tests of classification being founded on an in­telligible differentia which distinguishes per­sons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. 16. As a corollary to this well established propo­sition, the next question is, on whom the bur­den lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? 16. As a corollary to this well established propo­sition, the next question is, on whom the bur­den lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal pro­tection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the soci­ety may be bridged. This would necessitate a legislation applicable to a group of citizens oth­erwise unequal and amelioration of whose lot is the object of State affirmative action. In the ab­sence of doctrine of classification such legisla­tion is likely to flounder on the bed rock of equal­ity enshrined in Article 14. The Court realisti­cally apprising the social stratification and eco­nomic inequality and keeping in view of the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classifi­cation. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Leg­islative and executive action may accordingly be sustained if it satisfies the twin tests of rea­sonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This ap­proach is noticed in Ramana Dayaram Shetty V. International Airport Authority of India when at SCR page 1034 (SCC p 506), the Court ob­served that a discriminatory action of the Gov­ernment is liable to be struck down, unless it can be shown by the Government that the de­parture was not arbitrary, but was based on some valid principle which in itself was not irra­tional, unreasonable or discriminatory." 84. The decisions in Gurnam Kaur and Synthetics and Chemicals Ltd. (supra) were pressed into service to buttress the argument that a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute or any binding authority. Similarly, the decision in Arambam Kameshwar Singh (supra) was also pressed into service in which, a Division Bench of this Court explained the principles relating to per incuriam judgment. The observations of the Apex Court in the aforesaid case of Gurnam Kaur in paragraph 11 of the judgment are quoted below: "11. Pronouncement of law, which are not part of the ratio decidendy are classed as obiter dicta and are not authorative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without ar­gument, without reference to the relevant pro­visions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pave­ments or public streets, and without any cita­tion of authority. Accordingly, we do not pro­pose to uphold the decision of the High Court because, it seems to us that it is wrong in prin­ciple and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shown, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Munici­pal Corporation to construct a stall at the pitch­ing site of a pavement squatter. Professor P. J. Fitzgerald, editor of the Salmond on Jurispru­dence, 12th edn. explains the concept of sub silentio at p. 153 in these words: A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law in­volved in the decision is not perceived by the court or present to its mind. The court may con­sciously decide in favour of one party because of point A, which it considers and pronounces upon. The court may con­sciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific out­come, the decision is not an authority on point B. Point B is said to pass sub silentio." 85. Referring to the aforesaid judgment in Gurnam Kaur, the Apex Court in the aforesaid case of Synthetics and Chemicals made the following observations: "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare devises. The 'quotable in law' is avoided and ig­nored if it is rendered, 'in ignoratium of a stat­ute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while in­terpreting Article 141 of the Constitution which embodies the doctrine of precedents as a mat­ter of law. In Jaisri Sahu V. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an ap­pellate court is not binding. 41.......................... // was approved by this Court in Municipal Corporation of Delhi V. Gurnam Kaur. The bench held that, 'precedents sub-silentio and without argument are of no moment'. The courts thus have taken recourse to this principle for relieving form injustice per­petrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue can­not be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformly and consistency are core of ju­dicial discipline. But that which escapes in the judgment without any occasion is not ra­tio decidendi. In B Sharma Rao V. Union Terri­tory ofPondicherry it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Uniformly and consistency are core of ju­dicial discipline. But that which escapes in the judgment without any occasion is not ra­tio decidendi. In B Sharma Rao V. Union Terri­tory ofPondicherry it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any decla­ration any reason cannot be deemed to be dec­laration of law or authority of a general na­ture binding as a precedent. Restraint in dis­senting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” 86. The case of Dharam Dutt (supra) of the Apex Court, was relied upon by the learned Sr. Counsel for the petitioner to counter the argument that there being no independent challenge to the aforesaid letter dated 3.8.90 and the earlier writ petitions filed by the petitioners having been withdrawn, the subsequent writ petition challenging the impugned Rules is not maintainable. As noticed above the aforesaid letter dated 3.8.90 itself has been incorporated in Rule 24 (2)(ii) and the said letter dated 3.8.90 having been incorporated in the form of Rule in the new Rules of 2003, the said letter and the contents thereof with the all important decision imported to the said letter counting seniority of the Senior Classical/Hindi teachers with Bachelor's degree with effect from 3.8.90 got merged into the impugned Rule. In such a situation, needless to say that the writ petition challenging the said Rule itself is maintainable. In any case the letter dated 3.8.90 which was sought to be projected as a circular, which in fact is not, as has been held above, having been lapsed or merged with the impugned Rule, there is no need to make any independent challenge to the said letter dated 3.8.90. Since the Rule itself is under challenge, there is no question of making any challenge to the said letter dated 3.8.90 which has since spent its force of its own with the promulgation of the impugned Rules. 87. Since the Rule itself is under challenge, there is no question of making any challenge to the said letter dated 3.8.90 which has since spent its force of its own with the promulgation of the impugned Rules. 87. The decision in P. Mohan Reddy (supra) was pressed into service with the argument that even though an employee cannot claim a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the cadre and that it is wrong to contend that the , seniority of the employees has to be re-determined over and over again as and when the criterion changes. The question of re-determination of seniority in the cadre on the * basis of any amended criteria or Rules would arise only when the amendment in question is * given a retrospective effect. If the retrospectively of the Rule is assailed by any person then the court would be entitled to examine the same and decide the matter in accordance with law. In the instant case no Rule has been framed re-determining the seniority of the Senior Classical/Hindi teachers with retrospective effect and yet in effect the £ action taken by the respondents has the retrospective operation taking away the entire length of service rendered by the said group of teachers prior to 3.8.90. Even by the amendment of 1991 in the Rules of 1982, the aforesaid group of teachers was not en-cadred to Grade-IV along with other Graduate teachers inasmuch as they were already in the Graduate cadre, but was re-classified for identification in the aforesaid amended Rules of 1982. As already concluded above, even if the incorporation of the aforesaid group along with other Graduate teachers in Grade-IV is held to be encadrement, in absence of any other express provision towards determination of their seniority other than such determination under Rule 13 of the Rules, they will be entitled to count their seniority from their initial date of appointment which position is fully supported and covered by the aforesaid Division bench Decision in Samiran Das and the Apex Court s decision in Tez Narain Iiwari. 88. 88. Other decisions on which the learned counsel for the petitioner in WP(C) No. 28257 2004 and WP(C) No. 7191/2002 placed reliance are on the propositions that for promotion to the post of Headmaster, recommendation of the State Selection Board is necessary; services rendered by a teacher prior to provincialisation of the school shall count towards seniority in terms of Rule 13 of the Rules of 1982 and as to whether the letter dated 3.8.90 is an Executive Act or a Legislative Act which issue has already been decided above. As regards the proposition that the services rendered even prior to provincialisation shall count towards seniority and that there are two Grades in the service i.e. the Intermediate scale and Graduate scale applicable to all the teachers apart from other Grades and scales, same was also propounded by the Division Bench of this Court in the case of Nripen Kalita Vs. State of Assam & Ors. as reported in (1988) 2 GLR17. 89. Mr. K.N. Chodhury, learned Sr. Counsel for the respondent No. 4 in WP(C) No. 7125/2003 also placed reliance on the decision of P Mohan Reday primarily to bring home his argument that service conditions pertaining to seniority are liable to alteration by subsequent changes that maybe introduced in the Rules. But as observed above, the Apex Court in the same very judgment held that the employee has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the cadre. In that case the Apex Court further noticed that in the case of R.S. Makashi Vs. I.M. Mennon reported in (1982) 1SCC379, the relevant rules in that case protected the pre-existing seniority of the personnel drawn from different sources and merging into a single newly formed organization. Same was put to challenge as being arbitrary and unreasonable. It was held in that case that it is a just and wholesome principle commonly applied in such situation that their interse seniority in the parent department should be respected and preserved so long as they continued in the department and the relevant rule in that respect cannot be held to be violative of Article 14 and 16. It was held in that case that it is a just and wholesome principle commonly applied in such situation that their interse seniority in the parent department should be respected and preserved so long as they continued in the department and the relevant rule in that respect cannot be held to be violative of Article 14 and 16. In the instant case no such question has arisen inasmuch as it is neither a case of encadering ex-cadre post nor encadrement of the Senior Gassical/Hindi teachers with Bachelor degree with that of Graduate teacher. The position has already been explained above and the issue has been answered. However, even if the question is raised, same gets amply answered. 90. In the case ofPurshottam (supra) on which Mr. Choudhury placed reliance was in respect of determination of seniority of the employees in a workcharged establishment in the regular establishment. The Apex Court held that the services rendered by an employee in a work charged establishment is not to be taken into account for his seniority in the regular establishment. In that case the Apex Court made an observation regarding the expression "cadre" and that the services rendered by an employee in one cadre cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred (emphasis added). Such an observation was made in the background of that case in which the employees in the work charged establishment were absorbed in the regular establishment. That was not a case of either encadrement of an equivalent ex-cadre post or merger of two cadres or integration of one cadre with that of another cadre. Moreover, the Apex Court itself observed about the position in case of existence of any Rules of seniority. In the instant case apart from the fact that it was not a case of either encadrement or integration of the Classical teachers with that of Graduate teachers into a single cadre, as pointed out above, even in case of holding it to be an encadrement or integration of cadre, Rule 13 of the Rules of 1982 took care of the situation relating to determination of seniority in terms of which the earlier length of service cannot be ignored and will have to be counted. This position has been explained fully in the aforesaid case of Samiran Das and Tej Narain Tiwary. 91. This position has been explained fully in the aforesaid case of Samiran Das and Tej Narain Tiwary. 91. The decision in Pradip Chandra Parija (supra) was pressed into service to remind this Court about the judicial discipline and propriety in following the earlier decision and in the event of any disagreement with the earlier decision, the requirement to place the matter before another co-ordinate Bench which delivered the judgment. This judgment and the other judgments relating to the principle of per incuriam judgment were pressed into service centering around the argument in respect of the Division Bench judgment of this Courtm Khalilur Rahman 's case (supra). It will be pertinent to mention here that irrespective of the arguments advanced by the respective counsel in respect of the said Division Bench judgment, they fairly admitted that as in the instant case, Rule 24 (2)(ii) of the Rules of 2003 was not under challenge in that writ proceeding and that unfortunately the correct provisions of Schedule I and II of the amended Rules of 1982 were not placed. It was also hot brought to the notice of the Court that by the time the judgment in the aforesaid case was delivered, the new set of Rules i.e. the Rules of 2003 came into force. 92. Referring to the erroneously printed Schedule of the said Rules of 1982, in the book entitled "The Assam Education Manual" by N.C. Barman, the Division Bench of this Court held in that case that the aforesaid category of Senior Classical/Hindi teacher would fall in the cadre of Grade-V (serial No. 5 of Schedule-n). But in fact with the production of the correct print of the aforesaid Rules by the learned Sr. Standing Counsel, Education Department, it was seen that Grade-V category is in fact did not comprise the Senior Classical/Hindi teacher with Graduate qualification with Hindi/ Sanskrit/ Arabic/Persian as one of the subjects, but comprised the Senior Classical/ Hindi teacher with degrees like Assam Madrassa Final (Fazil), Sastri, HSLC, Proveen Rastra Bhasa Rama, Sahitya Ratna etc. Because of the printing mistake occurred in the aforesaid book, the group of teachers with which the present proceedings are concerned was indicated as Classical teachers who are Graduates in Science or Commerce. Learned counsel for the parties agreed that a classical teacher with Hindi, Sanskrit, Arabic, Persian, Assamese, Bodo etc. Because of the printing mistake occurred in the aforesaid book, the group of teachers with which the present proceedings are concerned was indicated as Classical teachers who are Graduates in Science or Commerce. Learned counsel for the parties agreed that a classical teacher with Hindi, Sanskrit, Arabic, Persian, Assamese, Bodo etc. as one of the subjects in degree course can never be a graduate in Science or Commerce. 93. In the aforesaid judgment of the Division Bench, the senior classical/Hindi teachers with whom the present proceedings are concerned, because of the printing mistake in the schedule of the Rules, were found/held to be in Grade-V which in fact is the category of teachers without Bachelors degree, but with degrees like Fazil, Sastri etc. The Division Bench held that the category V teachers were included in Grade-IV and thus they would get their seniority in Grade-IV from the date of their entry in Grade-IV. That maybe applicable to the Grade-V teachers who are not graduates. However, in the instant case, as argued by the learned Advocate General, Assam, the senior classical/Hindi teaches with Bachelors degree were not in any cadre, not to speak of being in cadre-IV or V. On the other hand, learned counsel for the respondent No. 4 making a deviation from the same stand midway the hearing of the case, by way of filing an affidavit, argued that the said group was not ex-cadre, but was in the cadre as was shown in SI. No. 9 of schedule I of the Rules of 1979. Both these arguments have been dealt with and answered above holding that the said group of teachers formed integral part of graduate cadre in Grade-IV 94. Thus from the aforesaid arguments also the Division Bench judgment does not lend support to the case of the respondents. Unlike the finding of the Division Bench that the said group constituted Grade-V cadre, it is the case of the respondents that they are not so. As indicated above, the Grade-V cadre in fact represents the title holders and not the graduates. However, because of the wrong printing, Grade-V cadre was wrongly identified. Thus this case does not help the case of the respondents, rather in a sense help the case of the senior Classical/Hindi teachers, because it is not their case that they were in Grade-V cadre. However, because of the wrong printing, Grade-V cadre was wrongly identified. Thus this case does not help the case of the respondents, rather in a sense help the case of the senior Classical/Hindi teachers, because it is not their case that they were in Grade-V cadre. It has all along been their case that they are in graduate cadre and for that matter in Grade-IV. Thus there is no question of bringing them to Grade-IV from Grade-V, which is also not the case of the respondents. By placing reliance on that decision, they cannot approbate and reprobate and play hot and cold. 95. Learned counsels for the parties all agreed that correct provisions of the Rules ought to have been placed before the Court. As in the instant case, in the aforesaid Appeal also the State played a very negative role and did not bring it to the notice of the Court about the correct provisions of law and played safe with printer's devil. It was in this context the judgment relating to the principles involved in per-incuriam judgment was referred to. 96. The aforesaid decision of the Division Bench was in respect of determination of seniority between two teachers on the basis of the aforesaid letter dated 3.8.90. In absence of any challenge to the said letter or the impugned Rules in that proceeding, the Court was not called upon to answer the legality and validity of the same. It had to proceed on the basis of the said letter dated 3.8.90. But in the instant proceeding the Rule itself is under challenge and this Court is bound to answer the validity or otherwise of the Rules in the factual and legal aspect of the matter so elaborately brought and argued by the respective parties. The issue raised in this proceeding was not the issue before the Division Bench and thus the decision in Pradip Chandra Parija s case (supra) is of no consequence. 97. In the case of State Mizoram Vs. Mizoram Engineering Service Association as reported in (2004) 6SCC218, the Apex Court upholding the Division Bench judgment of this Court in the matter of the impugned notification whereby certain categories of Engineers in the State Engineering Service had been excluded for purposes of revision of pay sales accepted by the State with the categorization as unrecognized service observed as follows: "6. Great stress was laid on the fact that Engi­neering Service in the State was not an orga­nized service and therefore, it did not have cat­egorization by way of entrance-level posts and for that reason the higher scale of Rs. 5900-6700 which was admissible for senior-level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Ser­vice as an unorganized service in the State is absence of recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly "No". For failure of the State Government to frame recruitment rules and bring Engineering Service within the frame of organized service, the engineers cannot be made to suffer. Apart from the reason of absence of recruitment rules for the Engineering Service, we see hardly any difference in orga­nized and unorganized service so far as gov­ernment service is concerned. In government service such a distinction does not appear to have any relevance. Civil service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words "organized service" and "unorganized service". Nothing has been pointed out in this behalf. The argu­ment is wholly misconceived. 7. The learned counsel for the appellant also argued that if the scale of Rs. 5900-6700 is to be allowed to the Chief Engineers, the State Gov­ernment will have to allow the same scale to other heads of departments in the service re­sources of the State Government and for that reason we should restrict the scale for post of Chief Engineer and Additional Chief Engineer to Rs. 4500-5700 and Rs. 4100-5300 respectively. In our view this is hardly any ground to inter­fere with the decision of the High Court. It has been round that the claim of the respondents is fully justified by the facts on record. The Cen­tral Government as well as the State Govern­ment accepted the recommendations of the Fourth Central Pay Commission and the scales being allowed to the members of the respon­dent Association are based on those recom­mendations." 98. When the legal position as discussed above is that much clear, it would be futile for the respondents to base their rights on mere submissions which has no sanctity or basis in law to destroy such right which otherwise inhered on the petitioners (Senior Classical/ Hindi teacher with Bachelor's degree) and available in law. When the legal position as discussed above is that much clear, it would be futile for the respondents to base their rights on mere submissions which has no sanctity or basis in law to destroy such right which otherwise inhered on the petitioners (Senior Classical/ Hindi teacher with Bachelor's degree) and available in law. No such deprivation of a substantive right of a person can be made except on the basis of any statutory provision or Rule or Regulation. There being none brought to the notice of this Court except the letter dated 3.8.90 since been formulated as Rule 24(2)(ii) of the Rules of 2003, which has already been held to be not applicable towards determination of seniority, the claim of the State cannot be countenanced. 99. Seniority is an incidence of service and where the service Rules prescribe the method of its computation, it is squarely governed by such Rules. In the absence of a provision, ordinarily the length of service is taken into account. As has been held above, the graduate Senior Classical/Hindi teachers are all along in the Graduate cadre and continued to be so with the re-classification and identification of the group in Grade-IV under Rule 3 of the amended Rules of 1982. From the materials discussed above, it is also clear that even after issuance of the letter dated 3.8.90, they continued to be so, but the whole controversy had arisen with the issuance of the letter dated 4.5.2001 (Annexure-in to the WP(C) No. 7125/2003. The same very position continued, rather incorporated in Rule 24(2)(ii) of the Rules of 2003. 100. The provisions of the said Rules have been discussed above in detail. While Rule 14 and 24 (1) provided seniority for the teachers in Graduate cadre and Post Graduate cadre from the date of continuous service, their cannot be any earthly reason as to why the Senior Classical/Hindi teachers who are also Graduates and encompassed as Class-11 (Junior) along with other Graduate teachers under Rule 3 of the Rules and who are also indicated as grade-IV cadre under Schedule-Ed (A) of the said Rules along with the other Graduate teachers, should be deprived of their entire length of service rendered prior to 3.8.90 and that too without any reasonable basis and in violation of the principles of natural justice. Any other interpretation would be against the settled Rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the Senior Classical/Hindi teachers with Bachelors degree based upon their length of service. 101 .From the discussions made above on both factual and legal aspects of the matter, it does not show and rightly so that the rule making authority had ever intended to take away the benefit of the length of service of the said group of teacher with the issuance of the letter dated 3.8.90. If the interpretation sought to be given to the said letter is accepted, same will also be in violation of Rule 3(iii) and (v) of 1979 Rules as noticed above. A settled factual as well as legal position relating to seniority of the said group of teachers could not have been taken away with such an interpretation inferring the same in the form of the impugned rule. 102. For the foregoing reasons, I am constrained to hold Rule 24(2)(ii) of the Assam Secondary Education (Provincialised) Service Rules, 2003 to be unconstitutional and ultra vires and accordingly same is set aside, quashed and struck down. Consequently the Senior Classical/Hindi teachers with Bachelor's degree will be entitled to count their seniority from their initial date of appointment. It is made clear that such seniority will be counted from the date of entering the Graduate cadre with Graduate scale of pay. As a consequence thereof, they will be entitled to all service benefits on that basis including promotion etc. Writ petition in WP(C) No. 7125/2003 stands allowed. 103. As a consequence, WP(C) No. 2825/2004 and WP(C) No. 7191/2002 also stand allowed and WP(C) No. 3971/2002 stands dismissed. The impugned orders in WP(C) No. 7191/2002 stand set aside and quashed and the petitioner being senior to the private respondent should be allowed to act as Principal-incharge of the school unless there is some other senior teacher in the Graduate cadre. Similarly the case of the petitioner in WP(C) No. 2825/2004 shall be considered for promotion as Headmaster in accordance with Rules and in absence of any regular selection be allowed to function as Headmaster-incharge he being the regularly appointed Assistant Headmaster of the School. 104. The writ petitions are answered in the above manner. There shall be no order as to costs.