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2006 DIGILAW 545 (GAU)

Prabodh Kr. Barua v. State of Assam

2006-06-08

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. The grievance raised in this writ petition is in respect of a WT message issued by the Commissioner & Secretary to the Government of Assam in the Education Department directing the Inspector of Schools, Sonitpur to allow the Respondent No. 5 to take over charge of the post of Principal in the school in question. Be it stated here that the Petitioner has been holding the post of Vice Principal, as in-charge since 1999 and thus naturally, it was his expectation that in the event of vacancy caused to the next higher post of the Principal, he would be allowed to hold charge of the post. 2. The facts as could be gathered from the writ petition, the miscellaneous applications filed by the Respondent No. 5, the counter affidavit filed by the Commissioner & Secretary, Education and the various documents including the service books produced by the learned Counsel for the parties, are as follows. 3. The Petitioner was appointed as Subject Teacher in History alongwith two others in Madhya Chaiduar Higher Secondary School, by Annexure-A appointment order dated 24.10.1978 issued by the Inspector of Schools of the then Darrang District Circle, Tezpur (now Sonitpur District). The appointment was stated to be for a period of three months or till the posts are regularized by the Director of Public Instruction, Assam under Regulation 3(f) of the APSC, possibly meaning thereby, the APSC (L&F) Regulation, 1951. Be it stated here that the posts did not come within the purview of APSC selection and thus the condition was a misnomer. 4. Pursuant to the aforesaid order of appointment, the Petitioner joined the post on 4.11.1978. The aforesaid appointment of the Petitioner was provisionally approved by the Director of Public Instruction by his communication dated 9.1.1979. In the approval order it was indicated that the candidates were selected for appointment. 5. As against the aforesaid appointment of the Petitioner, the Respondent No. 5 was appointed as Assistant Teacher in the intermediate cadre in the school on 3.6.1978. She was so appointed by order dated 30.5.1978 as an outsider temporarily against the vacancy caused by the resignation of one Sri Nityananda Bora. Admittedly, she was appointed without any selection. 5. As against the aforesaid appointment of the Petitioner, the Respondent No. 5 was appointed as Assistant Teacher in the intermediate cadre in the school on 3.6.1978. She was so appointed by order dated 30.5.1978 as an outsider temporarily against the vacancy caused by the resignation of one Sri Nityananda Bora. Admittedly, she was appointed without any selection. Thereafter, time to time, she was upgraded to the cadre of graduate teacher against temporary vacancies such as deputation vacancy, leave vacancy, etc., as has been revealed from the documents produced during the course of hearing and her service book. By order dated 11.2.1981, the Petitioner was upgraded as graduate teacher against a deputation vacancy. This was followed by another order of up gradation dated 21.2.1981. The service book has revealed that she was again upgraded against a leave vacancy with effect from 28.8.1981. Eventually, as per the service book, she was upgraded as Assistant Teacher in the graduate scale with effect from 1.6.1985 and has been continuing as such till date. Be it stated here that the services of the Respondent No. 5 in the intermediate cadre has been confirmed by Annexure-2 order dated 10.12.2003. However, no such confirmation/regularisation order has been issued in respect of her up gradation to the graduate cadre. 6. It is the case of the Petitioner that he having been appointed in the cadre of Subject Teacher with effect from 4.11.1978, which is a higher cadre than intermediate and graduate cadre, and even going by the date of his appointment, and up gradation of the Respondent No. 5 to the graduate cadre with effect from 1.6.1985, he is senior to the Respondent No. 5. On the other hand, it is the case of the Respondent No. 5 that since the services of the Petitioner as Subject Teacher has been regularized by order dated 23.7.2000, he cannot get his seniority for the period from his initial date of appointment in 1978 and will be entitled to count his seniority only from 20.7.2000 and thus, since the Petitioner has been upgraded to the graduate cadre with effect from 1.6.1985 (the date from which she has been continuously enjoying the graduate scale of pay), on the face of it she is senior to the Petitioner. 7. 7. It appears that the Principal of the school by his Annexure-B communication dated 26.6.2004, forwarded the application of the Respondent No. 5 claiming seniority over the teachers indicated in the communication which included the Petitioner as well. In the list of teachers the Respondent No. 5 was shown to be in the graduate cadre with effect from 1.6.1985 and the Petitioner in the Subject Teacher/graduate cadre with effect from 4.11.1978. Subsequently, another list dated 7.12.2004 was prepared and sent showing the Petitioner at serial No. 1 and the Respondent No. 5 at serial No. 5 on the basis of the respective dates of appointment in different cadres i.e. post graduate cadre/graduate cadre/intermediate cadre. 8. In the meantime, the post of Principal of the school being due to be vacant with effect from 31.12.2004, the Respondent No. 5 stacked her claim to hold the charge of the post and submitted representation with the recommendation of the local MLA and the Minister of State, H & DR, Assam. The representation was forwarded to the Director of Secondary Education by the Inspector of Schools by his Annexure-D communication dated 10.12.2004. Alongwith the communication, the seniority list of teachers and their ACRs were also forwarded. 9. After the aforesaid developments, the Director of Secondary Education, Assam by his Annexure-E communication dated 29.12.2004 addressed to the Commissioner & Secretary, Assam, while pointing out that the Petitioner is the seniormost teacher of the school among all graduate teachers, left the matter relating to charge of the post of Principal to be decided by the Government. Strangely enough, even after holding that the Petitioner is the seniormost teacher in the school, instead of suggesting to allow him to hold the charge of the post of Principal as per the normal practice and procedure, left the matter to be decided by the Government, possibly in view of the fact that the claim of the Respondent No. 5 had the political backing. For a ready reference the letter dated 29.12.2004 is quoted below: GOVT. OF ASSAM OFFICE OF THE DIRECTOR OF SECONDARY EDUCATION :: ASSAM KAHILIPARA:: GUWAHATI-19 No. GB-EST/Apt/75/96/292 Dated Kahilipara, the 29th Dec/2004 From: Dr. H.C. Das Director of Secondary Education, Assam Kahilipara, Guwahati-19. To: The Commissioner & Secretary, to the Govt. of Assam, Education Department, Dispur, Guwahati-6. Sub: Charge of Principal, M.C.D. H.S. School. OF ASSAM OFFICE OF THE DIRECTOR OF SECONDARY EDUCATION :: ASSAM KAHILIPARA:: GUWAHATI-19 No. GB-EST/Apt/75/96/292 Dated Kahilipara, the 29th Dec/2004 From: Dr. H.C. Das Director of Secondary Education, Assam Kahilipara, Guwahati-19. To: The Commissioner & Secretary, to the Govt. of Assam, Education Department, Dispur, Guwahati-6. Sub: Charge of Principal, M.C.D. H.S. School. Sir, In inviting a reference to the above subject, I have the honour to say that a proposal is received from the Inspector of Schools, Tezpur regarding Principal i/c with financial power of M.C.D. H.S. School, Sonitpur District. In this regard a seniority list is also received with the countersignature of the Inspector of Schools. As per the seniority list it is seen that Sri Prabodh Kr. Barua is the seniormost teacher of the school among all graduate teachers (copy of the seniority list enclosed). But as per the joining in the school, Smti. Minima Mahanta is senior to Sri Barua, Sri Barua has joined in the school on 4.11.78 as subject teacher in the school and Smt. M. Mahanta was appointed as an intermediate teacher on 3.6.78 and received graduate scale of pay from 1.6.85. The seniority is considered as on the date of receiving the graduate scale of pay only for giving the charge of the Head of the institution. However, if Govt. desired for smooth functioning of the school and demand from different sources, Smti. Minima Mahanta may be considered on special ground. I therefore request that Govt. may be pleased to pass necessary instruction to the undersigned regarding appointment of Principal incharge alongwith financial power in this regard. An early Govt. order is solicited. Yours faithfully Sd/- Illegible Director of Secondary Education, Assam Kahilipara, Guwahati-19. 10. After the aforesaid communication, the Commissioner & Secretary by his impugned WT message dated 31.12.2004 (Annexure-F) directed the Inspector of Schools to allow the Respondent No. 5 to take over the charge of the post of Principal, without, however, assigning any reason as to on what basis same was required to be done. While doing so, the said Commissioner & Secretary did not even indicate as to how the seniority of the Petitioner and others could be ignored. The impugned WT message dated 31.12.2004 (Annexure-F) is reproduced below: W.T. MESSAGE DATED 31st DECEMBER 2004 TO : INSPECTOR OF SCHOOLS SONITPUR FROM COMMISSIONER & SECY. While doing so, the said Commissioner & Secretary did not even indicate as to how the seniority of the Petitioner and others could be ignored. The impugned WT message dated 31.12.2004 (Annexure-F) is reproduced below: W.T. MESSAGE DATED 31st DECEMBER 2004 TO : INSPECTOR OF SCHOOLS SONITPUR FROM COMMISSIONER & SECY. EDUCATION ASSAM DISPUR No. C&SEDN/P&S/WMDTX/l/2004(.) MRS MINIMA MAHANTA MAY BE ALLOWED TO TAKE OVER CHARGE OF THE PRINCIPAL OF MCD HIGHER SECONDARY SCHOOL SONITPUR TILL A REGULAR PRINCIPAL IS POSTED (.) Memo No. C&S/EX/1/2004 Dated 31st December 2004 Copy to: 1. APRO Dispur. He is requested to transmit the above message immediately. Sd/-Illegible Commissioner & Secretary Govt. of Assam Education etc. Department, Dispur, Guwahati-6. 11. Although, the Respondent No. 5 has not filed any counter affidavit, but the learned Counsel representing her has placed reliance on the two miscellaneous applications being Misc. Case No. 2367/2005 and 556/2006 filed by her. On the other hand, the Commissioner & Secretary, Education has filed a counter affidavit. The Commissioner & Secretary in his affidavit has contended that since the Respondent No. 5 received the graduate scale of pay with effect from 1.8.1985 and the service of the Petitioner was regularized by order dated 23.7.2000, the Respondent No. 5 would rank senior to the Petitioner as the Petitioner cannot count the period of service rendered under Regulation 3(f) of the Regulation. 12. In tune with the plea of the Commissioner & Secretary, the Respondent No. 5 also through her aforesaid miscellaneous applications have taken the same plea. It is her simple case that since she is in the graduate cadre with effect from 1.6.1985 and the service of the Petitioner as Subject Teacher was regularized by order dated 28.6.2000, the Petitioner cannot count his seniority for the earlier period of service till 28.6.2000 as the same was under Regulation 3(f) of the Regulation. 13. Although, during the course of hearing of the case, the learned Counsel for the parties extensively argued on the question of seniority between the Petitioner and the Respondent No. 5 so as to claim the charge of the post of the Principal, but one thing, which cannot be lost sight of is that the Principal of the school has already indicated the Petitioner to be the seniormost teacher of the school. Likewise the Director of Secondary Education in his above communication dated 29.12.2004 also, on a reference to the seniority list of the school has held the Petitioner to be the seniormost teacher of the school among all the graduate teachers and to this established position, there is no challenge from anybody including the Respondent No. 5. If that be so, it is not discernible as on what basis the WT message dated 31.12.2004 could be issued allowing the Respondent No. 5 to hold the charge of the post of Principal. 14. Mr. R.P. Sharma, learned Sr. Counsel assisted by Mr. J.K. Parajuli, learned Counsel made his submissions on the basis of the aforesaid facts. He submitted that when the seniority of the Petitioner above the Respondent No. 5 is a settled position, the Commissioner & Secretary could not have issued the impugned WT message allowing the Respondent No. 5 to supercede the Petitioner as per his caprice and whims. 15. Countering of the above argument of Mr. Sarma, Mrs. N. Saikia, learned Counsel representing the Respondent No. 5 argued in tune with the stand in the counter affidavit of the Commissioner & Secretary as well as the miscellaneous applications filed by her. Ms. M. Gogoi, learned Standing Counsel, Education Department made her submissions referring to the stand of the Commissioner & Secretary. She also produced the service books of both the incumbents as well as the written instruction furnished to her. 16. Really speaking, there is no question of resolving the seniority dispute between the Petitioner and the Respondent No. 5 as the same is not directly involved but has been collaterally raised by the Respondent No. 5 without, however, making any grievance against the seniority list of the school as well as the above quoted communication dated 29.12.2004 clearly holding that the Petitioner is senior to her. However, since the learned Counsel for the parties extensively argued on the question of seniority, it will be appropriate to resolve the issue as well, to avoid further litigation. 17. Needless to say that before one finds irregularity in the appointment of others, he or she will have to see as to whether his or her own appointment itself is legally valid as per the Recruitment Rules. 17. Needless to say that before one finds irregularity in the appointment of others, he or she will have to see as to whether his or her own appointment itself is legally valid as per the Recruitment Rules. In the instant case, the whole basis of the claim of the Respondent No. 5 is that since the services of the Petitioner was regularized only in 2000 by order dated 28.6.2000, he is not entitled to count his seniority for the entire earlier period of service from 1978. But on the other hand, she is unmindful of the nature of her own appointments both in the intermediate and graduate cadre both of which were admittedly without any selection. During the course of hearing, learned Counsel was requested to apprise the Court as to under what Rule the Respondent No. 5 could be upgraded to the graduate cadre and that too without any selection. The learned State Counsel was also requested to obtain instruction in the matter, but not satisfactory reply could be furnished. 18. After the aforesaid direction to obtain instruction, the learned State Counsel has produced the copy of the communication dated 28.3.2006 addressed to the Secretary to the Government of Assam in the Education Department and issued by the Inspector of Schools, Sonitpur District Circle. The Communication reads as follows. OFFICE OF THE INSPECTOR OF SCHOOLS :: S.D.C.:: TEZPUR: No. Estt.30/2004/66/7321 Dated 28/3/06 To The Secretary, To the Govt. of Assam, Education Dept., Dispur, Ghy-6. Sub: Submission of information. Ref: Govt. W.T. Message No. ASE.35/2005/134 Sir, With reference to the subject cited above, I have the honour to submit herewith the following information in respect of Mrs. Minima Mahanta, A/T, M.C.D. H.S. School as asked for, for favour of your kind necessary action. 1. The date of upgradation of Minima Mahanta was on 1.6.85. 2. Smt. Minima Mahanta was upgraded to the post of Graduate teacher w.e.f. 1.6.85 according to the seniority among the staff of the school. At the time there were no provision for selection for upgradation to the graduate post in the school. Yours faithfully Sd/-J. Bora Inspector of Schools Sonitpur Dist. Circle, Tezpur. Memo No. Estt.30/2004/66-A Dated Copy to: 1. The Standing Council, Education Dept., Hon'ble Gauhati High Court. Guwahati. Inspector of Schools Sonitpur Dist. Circle, Tezpur 19. At the time there were no provision for selection for upgradation to the graduate post in the school. Yours faithfully Sd/-J. Bora Inspector of Schools Sonitpur Dist. Circle, Tezpur. Memo No. Estt.30/2004/66-A Dated Copy to: 1. The Standing Council, Education Dept., Hon'ble Gauhati High Court. Guwahati. Inspector of Schools Sonitpur Dist. Circle, Tezpur 19. From the aforesaid communication, it will be seen that the Respondent No. 5 was upgraded to the post of graduate teacher with effect from 1.6.1985 according to her seniority in the school and on the ground that at that relevant point of time there was no provision for selection for upgradation to the graduate posts. This information furnished to the Government by the Inspector of Schools is out and out false information. While it is true that the Respondent No. 5 was shown upgraded to the graduate post with effect from 1.6.1985, but there is no order to that effect, atleast the Respondents could not produce the same. It is not understood as to how the Respondent No. 5 could be upgraded from one cadre to another without any order to that effect. Further, the Inspector of Schools could not have said that there was no provision for selection. By making such statement he has not only mislead the Government but has tried to mislead this Court as well. 20. At the relevant period of time i.e. when the Respondent No. 5, was shown upgraded, the rules relating to appointment, promotion etc. was very much in existence. In this connection the Assam Secondary Education (Provincialised) Act, 1977 and the Rules framed thereunder called the Assam Secondary Education (Provincialisation) Rules, 1982 may be referred to. It was under the provisions of the said Act and the Rules, the service conditions of the teachers of Secondary Schools used to be governed. Be it stated here that the aforesaid Rules have further undergone subsequent amendments. However, when the Petitioner was appointed in 1978, naturally the Rules of 1982 was not in existence. On that count also, the Petitioner's continuous appointment will count for seniority. In this connection certain provisions of the Act relevant for the purpose may be referred to. (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 ad hoc system of grants-in-aid; (iii)... In this connection certain provisions of the Act relevant for the purpose may be referred to. (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 ad hoc 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 appointment day, in the regular pay roll, employee against regular sanction and whose appointment has been approved by the school authority; (vii)... (viii)... (ix)... (x)... (xi)... (xii) "school authority" means the "Director" or "Inspector" whose approval is necessary for the appointment regularization of the appointment of an employee of a secondary school. 21. As per the provisions of the aforesaid Rules, there is no question of any upgradation as was done in the case of the Respondent No. 5. Even if, such upgradation is construed to be promotion, such promotion could not have been given to the Respondent No. 5 without any selection. In the Rules definite provisions have been made for direct recruitment and promotion. For both promotion and direct recruitment, positive act of selection has been prescribed and there is no provision for any upgradation/promotion to graduate cadre and that too, in the manner and method in which the Respondent No. 5 was upgraded. 22. Rule 3 of the Rules of 1982 provides for class and cadre in terms of which the Subject Teacher or post graduate teacher is in Class-II, whereas the Graduate Teachers is in Class-III. Thus, while the Petitioner being a Subject Teacher/PG Teacher is in Class-II, the Respondent No. 5 is in Class-Ill. Rule 6 lays down the method of recruitment, in terms of which, appointment, both to the post of Subject Teacher and Graduate Teacher can be only by way of direct recruitment. There is no provision for promotion/upgradation to the post of Graduate Teacher. 23. The 1982 Rules also provided for determination of seniority. Under Rule 13 the seniority is to be determined on the following basis. (i) date of continuous appointment (ii) date of joining (iii) date of birth 24. There is no provision for promotion/upgradation to the post of Graduate Teacher. 23. The 1982 Rules also provided for determination of seniority. Under Rule 13 the seniority is to be determined on the following basis. (i) date of continuous appointment (ii) date of joining (iii) date of birth 24. If the date of continuous appointment and/or the date of joining is taken into account, the Petitioner having joined the cadre of Subject Teacher on 4.11.1978 and the Respondent No. 5 having joined the graduate cadre on 1.6.1985 and having held the post continuously since then, naturally the Petitioner would rank senior to her. Moreover, he is in a higher cadre. However, the whole controversy has been raised on the analogy that since the service of the Petitioner has been regularized by order dated 28.6.2000, he is entitled to count his seniority only from that date. Interestingly, while the Respondent No. 5 has harped upon this aspect of the matter, she has conveniently forgotten her own position. 25. Apart from the fact that prior to 1.6.1985, she was allowed to hold the post in the graduate cadre on temporary spells against leave, deputation vacancy etc. but eventually, from 1.6.1985, she has been continuously holding the post in the graduate cadre as has been admitted by all the parties and as has been revealed by her service book, there is also no order either upgrading or promoting her as Assistant Teacher (graduate cadre). It is also an admitted position that she has been holding the post without any selection as envisaged under the aforesaid Rules of 1982. If that be so, it is not understood as to how she could claim seniority in the graduate cadre with effect from 1.6.1985, if the analogy which she has applied to the case of the Petitioner, is to be applied to her case. Her confirmation in service with effect from 1.1.1981 being in the lower cadre (intermediate cadre) is of no consequence so far as the service in the higher grade (graduate cadre) is concerned. There is no dispute that the Respondent No. 5 has been holding the graduate post with effect from 1.6.1985 without any selection and even without any order of appointment/regularisation. 26. There is no dispute that the Respondent No. 5 has been holding the graduate post with effect from 1.6.1985 without any selection and even without any order of appointment/regularisation. 26. Above being the position, the question necessarily arises as to whether the Respondent No. 5 can claim seniority over the Petitioner to which, having regard to the aforesaid facts and circumstances, the irresistible answer will be in the negative. At least the Petitioner has got the order of regularization to his credit, which is not so with the Respondent No. 5. Further, the Petitioner being in the cadre of Subject Teacher, which is even higher than the graduate cadre, there cannot be any comparison between them. 27. As noted above, as per the provisions of Rule 1982 determining the seniority on the basis of date of joining and continuous appointment also, the Petitioner is certainly senior to the Respondent No. 5. The analogy which has been drawn from the other service rules and pertaining to appointment in other services pursuant to selection by the APSC, is totally misplaced. 28. In the instant case, there is no question of appointment pursuant to selection by APSC. The appointments are to be made and seniority is to be determined as per the in built provisions of the aforesaid Act and the Rules mentioned above (since amended). Merely because the initial appointment of the Petitioner was wrongly described to be one under Regulation 3(f), same by itself cannot give rise to the kind of situation in which a Regulation 3(f) appointee in the State services gets his seniority from the date of regularization pursuant to selection and recommendation by the APSC. In the State Service Rules, the seniority is specifically provided to be from the date of regular appointment pursuant to selection by APSC and in order of merit. However, unlike those services, the posts with which we are concerned in this proceeding are not within the purview of APSC, which fact has been admitted by the learned State Counsel as well as the learned Counsel representing the Respondent No. 5. If that be so, the Petitioner will get his seniority from 1978, irrespective of the order of regularization of 2000, which will also relate back to 1978 in terms of continuous appointment. 29. If that be so, the Petitioner will get his seniority from 1978, irrespective of the order of regularization of 2000, which will also relate back to 1978 in terms of continuous appointment. 29. Thus, from the above, can it be said that the Petitioner will not get the benefit of his continuous appointment so as to count his seniority from the date of joining as per the provisions of Rule 13 of the aforesaid Rules of 1982. The answer is certainly--No. The service condition of an employee cannot be governed as per the stipulation made in the appointment order, which is contrary to the service rules. The wrongful stipulation made in the order of appointment cannot override the statutory Recruitment Rules. As noticed above, the appointment of the Petitioner in 1978 was pursuant to a selection and while approving such appointment by the Director of Public Instruction, same was indicated. After that, it is not discernible as to what necessitated regularization of service of the Petitioner by the aforesaid order dated 28.6.2000. Be that as it may, such regularization cannot override the statutory provisions so as to take away the entire period of service from 1978 onwards till the order of regularization. The Respondents have also not understood the matter in that manner as would be evident from the above communication dated 29.12.2004 issued by the Director of Secondary Education. However, the Commissioner & Secretary, being caught in the whirlpool on the face of irregularity committed by him towards issuance of the impugned WT message dated 31.12.2004 has tried to justify his action on the basis of the stand in his affidavit, which is absolutely contrary to the rules. 30. As has been held by the Apex Court in the case of Mohinder Singh Gill v. Election Commissioner reported in 1978 1 SCC 405 when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 31. The whole basis of the case of the Respondent No. 5 could be gathered from her statement in paragraph 8 of Misc. Case No. 2367/2005 which is quoted below: 8. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 31. The whole basis of the case of the Respondent No. 5 could be gathered from her statement in paragraph 8 of Misc. Case No. 2367/2005 which is quoted below: 8. That the Applicant/Respondent No. 5 further states that in pursuance of Rule 24(1) of the Assam Secondary Education (Provincialised) Service Rules, 2003 the seniority will be counted from the date of joining as well as from the date of continuous appointment etc. In the present case the Applicant had joined on 3.6.1978 in intermediate scale and has received the graduate scale from 11.2.1981 temporarily and since 1.6.1985 regularly. On the other hand the writ Petitioner has joined on 4.11.1978 under Regulation 3(f) only although he received the graduate scale since 4.11.1978. The service of the writ Petitioner has been regularized on 28.6.2000 and his service is yet to be confirmed and his seniority is yet to be fixed. 32. The above stand of the Respondent No. 5 is fallacious inasmuch as the Rules of 2003 cannot be applied retrospectively. As indicated above, at the relevant point of time the aforesaid Rules of 1982 was holding the field and the seniority of the incumbents will have to be determined on the basis of that rule only. As against the placement of the Subject Teacher and Graduate Teacher in two different cadres in the 1982 Rules, showing the cadre of Subject Teacher to be a higher cadre than the graduate cadre, in the Rules of 2003 (Rule 24), both the cadre have been clubbed together for determination of inter-se seniority for the purpose of filling up the vacancies of Vice-principal, which post, the Petitioner is already holding. This Rules of 2003 being only prospective cannot be applied to the case on hand and even if applied, going by the aforesaid facts and circumstances, the Petitioner will definitely rank senior to the Respondent No. 5. The Respondent No. 5 cannot harp upon the principle of determination of seniority by falling back to other State Service Rules when the Rules holding the field itself provides for determination of seniority among the teachers. 33. There is another aspect of the matter. The Respondent No. 5 cannot harp upon the principle of determination of seniority by falling back to other State Service Rules when the Rules holding the field itself provides for determination of seniority among the teachers. 33. There is another aspect of the matter. It will have to be borne in mind that the Petitioner is already looking after the charge of Vice-principal and thus, naturally in case of vacancy in the post of Principal, the temporary management of the same would fall on him. Further, the Petitioner being in the higher cadre of Subject Teacher, naturally even otherwise also, he has a better claim than the Respondent No. 5 for such temporary arrangement. It appears from Misc. Case No. 2491/2005 filed by the Petitioner that the Government has reviewed the impugned WT message dated 31.12.2004 and in terms of the interim order passed by this Court, has allowed the Petitioner to take over charge of the post of Principal of the school. This has been done by the Government of Assam in the Department of Education by its letter dated 22.6.2005. 34. Thus, from all the above discussions, there is no manner of doubt that the Petitioner is senior to the Respondent No. 5 and consequently, the above quoted communication dated 29.12.2004 was rightly made holding the Petitioner to be the seniormost teacher of the school upon a reference to the seniority list of the school to which there is also no challenge on the part of the Respondent No. 5. While, defending the impugned WT message dated 31.12.2004, she cannot collaterally put to question the determination of seniority of the Petitioner above her. 35. For all the foregoing reasons, discussions and conclusions, the impugned WT message is not sustainable in law and accordingly it is set aside and quashed with the declaration that the Petitioner is senior to the Respondent No. 5 and consequently, it is he who will hold the charge of the post of Principal till the same is filled up through regular process of selection. 36. Writ petition stands allowed, without, however, any order as to costs. Petition allowed