1. By way of this petition under article 226 of the Constitution of India/ petitioner seeks quashing of notification No.ASE.378/2011/pt.2 dated 24.6.2011 issued by the first respondent allowing respondent No.3 to hold full charge of Director of Secondary Education, Assam after relieving the petitioner from the charge of the said post. 2. Case projected by the petitioner is that he is a Master Degree-holder securing high second class marks. He has also obtained BT degree. He served as Lecturer and then as Reader in the State Institute of Science Education, Assam from 1977 till 1987. Following selection by the Assam Public Service Commission (APSC), petitioner was appointed as Assistant Inspector of Schools, in which post he joined on 22.12.1987. 3. Thereafter, on being recommended by the APSC, petitioner was appointed as District Elementary Education Officer on 18.12.1992. Subsequently, he was posted as Deputy Director in the office of Director of Secondary Education, Assam vide notification dated 22.9.2005. 4. Alleging denial of promotion to the post of Joint Director, petitioner filed WP(C) No.3126/2006 and following judgment of this court dated 18.1.2008, petitioner was promoted to the post of Joint Director, Secondary Education w.e.f. 22.6.2006, i.e., from the date on which his immediate junior was promoted as Joint Director vide notification dated 2.8.2008. 5. Petitioner was further promoted to the post of Additional Director and thereafter allowed to hold current charge of office of Director of Non-Formal and Adult Education, Assam vide notification dated 22.9.2009. The promotion of the petitioner from Joint Director to Additional Director was thereafter regularized w.e.f. the date of taking over charge on promotion on the recommendation of APSC. 6. By notification dated 30.9.2010, petitioner was transferred and posted' as Additional Director in the Directorate of Secondary Education and on being so posted, he was allowed to temporarily hold charge of Director of Secondary Education, Assam in addition to his own duties w.e.f. 30.9.2010. 7. However, the first respondent issued notification No. ASE-378/2011/ pt.2 dated 24.6.2011 allowing respondent No. 3, whose substantive posting is Deputy Secretary, Education (Higher) Department and belongs to the State Civil Service, to hold full charge of Director of Secondary Education, Assam with immediate effect in addition to his own duties after relieving the petitioner from the charge of Director of Secondary Education. It was, however, clarified that the petitioner would continue in his original post as Additional Director of Secondary Education. 8. It was, however, clarified that the petitioner would continue in his original post as Additional Director of Secondary Education. 8. The above notification dated 24.6.2011 is impugned in the present proceeding. The basic ground of challenge is that as per Assam Education Service Rules, 1982, the post of Director should be held by a person belonging to Assam Education Service having first class or higher second class Master Degree and at least ten years of teaching experience with at least five years of administrative experience. According to the petitioner, while he fulfils the above requirement, respondent No.3 does not fulfil the eligibility requirement in as much as he does not have any teaching experience, thereby disentitling him from holding the said post. Further grievance of the petitioner is that respondent No.3 does not belong to the education service and is a junior officer as per the Government pay structure. He has also raised the grievance that junior officers of the Department have been allowed to hold charge of Director of other Directorates within the Department ignoring his better claim. His representations to allow him to hold the post of Director considering his seniority and long experience did not elicit any response. 9. Respondent Nos. 1 and 2 have filed their counter affidavit. State has taken the stand that respondent No.3 has been allowed to hold full charge of Director of Secondary Education in addition to his own duties as Deputy Secretary, Education (Higher )kDepartm end in terms of rule 5 of Assam Education Service Rules, 1982 ('Rules'). It is stated that performance of the petitioner when he was holding charge of Director of Secondary Education was not found satisfactory and, therefore, in the interest of public service and for better and smooth functioning of the Directorate, petitioner was relieved from the charge of Director of Secondary Education and as per provision of rule 5 of the Rules, respondent No.3 has been given temporary charge of the post. It is, however, stated that as soon as regular Director of Secondary Education joins in the post, respondent No.3 will be automatically reverted to his own substantive post. While other allegations made by the petitioner have been denied, it is, however, admitted that Shri P. Jidung, Joint Director, who is junior to the petitioner, has been allowed to hold charge of the office of Director of Higher Education. 10. While other allegations made by the petitioner have been denied, it is, however, admitted that Shri P. Jidung, Joint Director, who is junior to the petitioner, has been allowed to hold charge of the office of Director of Higher Education. 10. Petitioner in his re-joinder affidavit has contended that the State has not answered the most pertinent question, i.e., whether respondent No.3 has the required qualification to hold the post. Petitioner has reiterated that respondent No.3 does not have any teaching experience and belongs to the State Civil Service. Therefore, he is not eligible to hold the post of Director of Secondary Education. Contesting the assessment of the service of the petitioner by respondent Nos.1 and 2 as unsatisfactory, petitioner has stated that the previous Commissioner and Secretary had praised his performance. Petitioner has contended that he is the senior-most person in the service and has all the requisite qualification to be appointed as Director of Secondary Education. In such circumstances, respondent No.3 should not have been given full charge of the office of Director of Secondary Education by relieving the petitioner from such charge. 11. Petitioner has also filed an additional affidavit to bring on record a subsequent development, namely, issuance of notification dated 1.2.2012 whereby the petitioner has been allowed to temporarily hold charge of Director of Non-Formal and Adult Education in addition to his own duties as Addl., Director of Secondary Education. 12. Respondent Nos. 1 and 2 have also filed an additional affidavit bringing on record the aforesaid fact. It is, however, stated that though the petitioner was on leave on medical ground, on the day of issuance of the notification dated 1.2.2012 itself, he submitted his joining report and resumed his duty as Additional Director of Secondary Education in order to take over charge of Director of Non-Formal and Adult Education, Assam. 13. Though respondent No.3 has been served, he has chosen not to file his response. 14. Heard Mr. D.K. Sharma, learned counsel for the petitioner as well as Mr. A.D. Choudhury, learned standing counsel, Education Department, appearing for respondent Nos. 1 and 2. 15. Learned counsel for the petitioner submits that presently the petitioner is the senior-most officer in the Department. Petitioner has the requisite qualification and experience to be appointed as Director of Secondary Education. Heard Mr. D.K. Sharma, learned counsel for the petitioner as well as Mr. A.D. Choudhury, learned standing counsel, Education Department, appearing for respondent Nos. 1 and 2. 15. Learned counsel for the petitioner submits that presently the petitioner is the senior-most officer in the Department. Petitioner has the requisite qualification and experience to be appointed as Director of Secondary Education. It has been the past practice of the Department to appoint the senior-most person of the Department as the Director of Secondary Education. He submits that as the respondent No.3 does not belong to the education service and does not have any teaching experience, he lacks eligibility to be appointed as Director of Secondary Education and, therefore, he could not have been allowed to hold full charge of the post of Director of Secondary Education, more so when a suitable person like the petitioner is available. He also submits that as per the Assam Services (Revision of Pay) Rules, 2010, though there is a Directorate of Adult Education in the Education (General) Department, there is no post of Director of Non-Formal and Adult Education or Director of Adult Education but only a post of Additional Director, Adult Education. He, therefore, submits that it is this post which has been actually offered to the petitioner vide the notification dated 1.2.2012. 16. Learned standing counsel on the other hand submits that the petitioner cannot claim as a matter of right that he should either be appointed as Director of Secondary Education or be given additional charge of the said post. Referring to the contents of the departmental affidavits, learned standing counsel submits that as the performance of the petitioner was not found to be satisfactory, he was relieved from the additional charge of Director of Secondary Education and as a temporary measure, respondent No.3 has been given charge of the said post which is permissible under proviso to rule 5(1) of the Rules. 17. The submissions made have been considered. 18. Moot question is whether the authority is justified in allowing respondent No.3 to hold charge of Director of Secondary Education, Assam overlooking the case of the petitioner. 19. The Rules provide for a service called Assam Education Service Rules which comprises of various classes and cadres. 17. The submissions made have been considered. 18. Moot question is whether the authority is justified in allowing respondent No.3 to hold charge of Director of Secondary Education, Assam overlooking the case of the petitioner. 19. The Rules provide for a service called Assam Education Service Rules which comprises of various classes and cadres. As per rule 3(1)(a), the service consists of only one Director, viz., Director of Public Instruction and below him, there are Additional Director of Public Instruction 7 Director of Elementary Education and Director of Adult Education, referred to as Additional Director. Thus, Director of Elementary Education and Director of Adult Education are equivalent to the post of Additional Director, which is below the post of Director, 20. It is submitted at the bar that the post of Director of Public Instruction is no longer in existence. As per the, Schedule to the Assam Services (Revision of Pay) Rules, 2010, the Education (General) Department comprises of the following five directorates : (1) Directorate of Higher Education, (2) Directorate of Secondary Education, (3) Directorate of Elementary Education, (4) Directorate of Adult Education, (5) Directorate of SCERT, There are Directors for all the Directorates except the Directorate of Adult Education. In case of Adult Education, it is the Additional Director. All the posts of Directors, including the post of Director of Secondary Education, are selection posts. 21. Rule 5 provides that recruitment to the post of Director of Public Instruction shall be made by direct recruitment only with qualifications prescribed under rule 8. As per rule 8, the qualification and experience is as per Schedule-II, which says that the qualification prescribed is first class or high second class Master Degree in Arts/Science/Commerce from any recognised university having at least 10 years of teaching experience with at least 5 years of administrative experience. It further says that members of Assam Education Service having minimum 5 years administrative experience will be eligible to apply provided they are within the prescribed age limit. Now, in place of Director of Public Instruction/which post has been abolished, there are 4 posts of Directors, including Director of Secondary Education. 22. It further says that members of Assam Education Service having minimum 5 years administrative experience will be eligible to apply provided they are within the prescribed age limit. Now, in place of Director of Public Instruction/which post has been abolished, there are 4 posts of Directors, including Director of Secondary Education. 22. Proviso to sub-rule (1) of rule 5 provides that if no suitable person is found to fill up the post of Director and if it is necessary to fill up the post urgently but cannot be done in accordance with the procedure laid down or under the APSC (Limitation of Functions) Regulations, 1951, the appointing authority may fill up the post of Director temporarily from the members of the administrative services of the State and such appointment, if made, shall not extend beyond 2 years at a time. However, prior consultation with the APSC is not necessary in case of such appointment. 23. Procedure for direct recruitment is laid down in rule 6, which is as under: "6. Direct recruitment. — (1) Direct recruitment to the posts mentioned in sub-rule (1) of rule 5 shall be made by the Government on the basis of recommendation made by the Commission in accordance with procedure hereinafter provided. (a) Before the end of each year the Government shall make an assessment regarding the likely number of vacancies to be filled up by direct recruitment during the next year and shall intimate the same to the Commission, together with the details about reservation for candidates belonging to Scheduled Castes and Scheduled Tribes or any other category as provided under rule 15. (b) The Government shall simultaneously request the Commission to recommend list of candidates for direct recruitment in order of preference. (c) The Commission may hold such test or interview as may be considered necessary. (d) The Commission shall furnish to the Government a list of candidates recommended by it in order of preference, found suitable for direct recruitment. The member of candidates in such a list may be approximately double the number of vacancies. (e) The Commission shall simultaneously publish the list in the Assam Gazette and such other place as the Commission may consider proper. The member of candidates in such a list may be approximately double the number of vacancies. (e) The Commission shall simultaneously publish the list in the Assam Gazette and such other place as the Commission may consider proper. (2) The list mentioned in clauses (d) and (e) of sub-rule (1) of this rule shall remain valid for 12 calender months from the date of recommendation, (3) In the event of the Commissioner being unable to recommend sufficient number of candidates to fill up the vacancies in a year it shall in consultation with the Appointing Authority repeat the procedure as mentioned hereinbefore under sub-rule (1) of this rule, for recommending a subsequent list in the year : Provided that the Appointing Authority shall not make appointment of any candidate from the subsequent select list until all the candidates of the earlier list of the same year, eligible for appointment, have been offered the appointment." 24. From a conjoint reading of rule 5(1) of the Rules and the Schedule to the Assam Services (Revision of Pay) Rules, 2010, it is quite clear that the post of Director of Secondary Education is a selection post and is required to be filled up as per procedure prescribed in rule 6, subject to the qualification prescribed, in Schedule-II to the Rules. 25. The proviso to sub-rule (1) of rule 5, which enables the appointing authority to fill up the post of Director temporarily from the members of the administrative services of the State for a period not exceeding two years at a time, will come into play only if no suitable person is found to full up the post and if it is considered necessary to fill up the post urgently but cannot be done in accordance with the prescribed procedure or under the APSC (Regulation of Functions) Regulations, 1951. 26. Suitability of a person is relatable to the qualification prescribed in Schedule-II and as per assessment of APSC under rule 6(1) of the Rules, particularly clauses (c) and (d) thereof. It is not based on any ad hoc or subjective assessment of the appointing authority. Therefore, the action of respondent No.1 in temporarily allowing respondent No.3 to hold charge of Director of Secondary Education does not appear to be justified. Though respondent Nos. It is not based on any ad hoc or subjective assessment of the appointing authority. Therefore, the action of respondent No.1 in temporarily allowing respondent No.3 to hold charge of Director of Secondary Education does not appear to be justified. Though respondent Nos. 1 and 2 have stated in their affidavit that such temporary arrangement is till joining of regular Director of Secondary Education, no step appears to have been taken to make regular appointment following the procedure prescribed in rule 6 of the Rules. 27. At the same time it is also true that the petitioner cannot claim as a matter of right that he should either be allowed to hold charge of Director of Secondary Education or appointed on regular basis. 28. In such circumstances, without expressing any opinion on the issue of eligibility of respondent No.3 to hold full charge of Director of Secondary Education on temporary basis or on the peripheral issues raised by the petitioner; considering the importance of the post which requires it being manned by a regular incumbent, this court directs respondent Nos.1 and 2 to take necessary steps to fill up the post of Director of Secondary Education, Assam on regular basis as per procedure prescribed in rule 6 of the Rules. The said process shall be completed within a period of four months from today. 29. Writ petition accordingly stands disposed of. 30. No cost. _____________