Order The perpetual rivalry for seniority among the teachers of High Schools is once again confronting this Court in this writ petition wherein the petitioner is questioning the legality of the order dated 15-6-2012 issued by the Director of Secondary Education, Assam (respondent 2) holding the respondent No. 5 to be senior to the petitioner and then allowing him to hold the charge of Principal of Bidyapara Boys’ High Secondary School, Dhubri. 2. The case of the petitioner is that he was initially appointed as Assistant Teacher of Habidabad High Secondary School on 30-9-1977, and was subsequently appointed as Subject Teacher in Political Science. His service was confirmed on 5-5-1993 with effect from 29-6-1988 against a permanently retained post. Subsequently, he was transferred to Bidyapara Boys’ H.S. School (“the School” for short) on 24-12-1984. It may be noted that in his transfer order, it was, however, mentioned that he would not be entitled to TA/DA. On 29-12-2009, the Principal of the School prepared a seniority list for the teachers of the School for the purpose of promotion to the post of Principal/Vice Principal of the School wherein the name of the respondent No. 5 was shown above the name of the petitioner even though he is senior to him. In the meantime, one Pradip Kr. Sarkar was appointed the Principal-in-Charge of the School following the retirement of the incumbent vide the order dated 6-1-2010 issued by the respondent No. 2. The respondent No. 5 filed WP(C) No. 177/10 challenging the appointment of the said Pradip Kr. Sarkar as the Principal-in-Charge of the School. The petitioner also filed WP(C) No. 1046/10 challenging the seniority list dated 29-12-2010/1-1-2011. This Court took up both the cases together and by a common order dated 28-4-2010 dismissed the writ petition filed by the respondent No. 5 and allowed the writ petition filed by the petitioner. The respondent No. 5, however, took the matter to appeal before the Division Bench of this Court in WA No. 131/10. This Court took up both the cases together and by a common order dated 28-4-2010 dismissed the writ petition filed by the respondent No. 5 and allowed the writ petition filed by the petitioner. The respondent No. 5, however, took the matter to appeal before the Division Bench of this Court in WA No. 131/10. The Division Bench of this Court then passed the order dated 14-5-2010 recording the conflicting views taken by two Division Benches of this Court on the effect of transfer on request on the seniority of the transferred teacher and then referred it to a larger Bench and at the same time directed maintenance of the status quo by the parties with respect to the post of Principal-in-Charge of the School. 3. Though the said Pradip Kr. Sarkar had already taken over the charge of the Principal of the School, the respondent No. 4 issued the order dated 9-7-2010 allowing the respondent No. 5 to hold the charge of the Principal of the School on the ground that he had not handed over the charge of the post of Principal to the said Pradip Ch. Sarkar. This was challenged by the said Pradip Kr. Sarkar in WP(C) No. 4353/10 before this Court, which by the order dated 11-8-2010 stayed the order dated 9-7-2010 after coming to the conclusion that the said Pradip Ch. Sarkar was holding the charge of Principal. Soon thereafter, the said Pradip Ch Sarkar retired from service on superannuation whereafter the petitioner was allowed to hold the charge of the Principal vide the order dated 30-4-2011. The respondent No. 5 promptly challenged the order dated 30-4-2011 before this Court in WP(C) No. 2408/11 contending that he is senior to the petitioner. During the pendency of the said writ petition, the respondent No. 2 issued another order dated 15-6-2012 allowing the respondent No. 5 to hold the charge of the Principal of the School on the ground that the transfer order of the petitioner was on his request as no TA/DA was paid to him. This Court by the order dated 24-9-2012 disposed of WP(C) No. 2408/11 by directing the respondent No. 2 to reconsider the matter by observing that the mere mentioning of the fact that no TA/DA would be admissible in his transfer order did not necessarily mean that the transfer order had been passed on his request. This Court by the order dated 24-9-2012 disposed of WP(C) No. 2408/11 by directing the respondent No. 2 to reconsider the matter by observing that the mere mentioning of the fact that no TA/DA would be admissible in his transfer order did not necessarily mean that the transfer order had been passed on his request. However, the respondent authorities have not taken any decision pursuant to the order of this Court. This is how this writ petition has been filed by the petitioner. 4. The writ petition is contested by the respondent No. 2 and the respondent No. 5 by filing their respective affidavits-in-opposition. The respondent No. 2 reiterates the stance taken by him in the impugned order dated 15-6-2012 passed by him, which is found at para 5, 6 and 7 of his affidavit, which are reproduced below:- “…. As per rule 24 of the said Service Rules, seniority is to be determined in between raduate and Post Graduate Teacher with regard to date of receiving Grade Scale of Pay. The Service Rule clearly mentioned that teaches on transfer on request shall not get seniority. The Service Rule 2012 is notified on 11-8-2003 prior to the Service Rules, 1982 were in force. The Service Rules of 1982 did not mention about the seniority regarding transfer. The above dispute has been settled by the Hon’ble Gauhati High Court on 20-12-2011 in a Historic Judgment by Full Bench in Writ Appeal 131/2010. In the said judgment, it has been held that the rule relating to transfer mentioned in Rule 2003 is retrospective. Sri Samsul Haque Sk… Subject Teacher came on transfer vide the then Director of Public Instructions (D.P.I.’s) order No. GMSC/96/84/379, dtd. 24-12-1984. In the said order it is written that he would not get TA/DA. Hence, the said transfer order is on own request. Sri Samsul Haque Sk. has joined Bidyapara Boys’ H.S. School on 11-1-1985 on transfer from Hamidabad H.S. School. As per his joining in Bidyapara Boys’ H.S. School his seniority is counted from 11-1-1985. As such, Sri Jamal Uddin Ahmed is senior most.” 5. Hence, the said transfer order is on own request. Sri Samsul Haque Sk. has joined Bidyapara Boys’ H.S. School on 11-1-1985 on transfer from Hamidabad H.S. School. As per his joining in Bidyapara Boys’ H.S. School his seniority is counted from 11-1-1985. As such, Sri Jamal Uddin Ahmed is senior most.” 5. The case of the respondent No.5, as pleaded in his affidavit-in-opposition, is that the petitioner was transferred from Hamidabad H.S. School, Dhubri to Bidyapara Boys’ H.S. School on his request and no TA/DA was, therefore, admissible to him for his transfer: he was requested to join his duty within 7 days from the date of receipt of the transfer order failing which his transfer was liable to be cancelled. The respondent No. 5 joined the school on 3-9-1984 whereas the petitioner joined the school on transfer on request on 24-12-1984. According to the answering respondent, as the seniority was prepared according to school seniority, he is obviously senior to the petitioner. The service of the petitioner prior to his transfer on request to this school could not be counted for the purpose of seniority in the transferred school. The respondent No. 2 issued the circular dated 21-3-2012 clarifying that all orders which do not contain the words or phrase “in public service” and “in public interest” should be treated or construed to have been made or issued in “own interest”: this order is still in force and binding upon all concerned. There is thus no illegality in placing him above the petitioner in the seniority list. These are the sum and substance of the case of the respondent No. 5. 6. Though many facts are pleaded by the parties, the sole question which falls for consideration in this writ petition is whether the petitioner was transferred to Bidyapara Boys’ H.S. School on his request or not. There is no dispute at the bar that if the petitioner was transferred on his request, his seniority in the transferred school would be counted only with effect from the date he joined the transferred school. To appreciate the rival contentions, it will be apposite to refer to the relevant portions of the transfer order of the petitioner, which reads thus:- “ORDER Shri Md. Samsul Haque SK Subject Teacher in Pol. Science of Hamidabad Higher Secondary School, Dist. To appreciate the rival contentions, it will be apposite to refer to the relevant portions of the transfer order of the petitioner, which reads thus:- “ORDER Shri Md. Samsul Haque SK Subject Teacher in Pol. Science of Hamidabad Higher Secondary School, Dist. Dhuri is hereby transferred and posted to Bidyapara Boys’ Higher Secondary School, Dist.- Dhubri in his own grade and pay, etc. No TA and DA will be admissible for the purpose. Sd/- K. Chetia Addl. Director of Public Instructions, Assam, Kahilipara, Guwahati – 19.” 7. This Court in its order dated 28-4-2010 of WP(C) No. 177 of 2010 (Jamal Uddin Ahmed v. State of Assam and others) has held that though the transfer order under challenge indicated that the petitioner therein would not be entitled to TA and DA, in the absence of anything to the contrary, such transfer would not entail loss of seniority. This was the view taken by this Court in its order dated 24-9-2012 of WP(C) No. 2408 of 2011 (Jamal Uddin Ahmed v. The State of Assam and ors) wherein it was observed:- “… After passing of the said order, a Full Bench of this Court in Jamal Uddin Ahmed v. State of Assam & ors, reported in 2002 (1) GLT 1 has held that if a teacher is transferred on his own request, he will lose his seniority and his seniority will be counted from the date of joining in the transferred school posting. It has also been observed that just because there is a mention in the order of transfer that no TA/DA is admissible, it does not necessarily mean that the transfer order was passed on his own request. It has been brought to the notice of the Court that there is a subsequent amendment relating to the Assam Secondary Education (Provincialized) Service Rules, 2003 by 2012 (Amendment Rules). ….” (Underlined for emphasis) 8. It has been brought to the notice of the Court that there is a subsequent amendment relating to the Assam Secondary Education (Provincialized) Service Rules, 2003 by 2012 (Amendment Rules). ….” (Underlined for emphasis) 8. As the legal position is that just because there is no mention that no TA and DA would be admissible to the petitioner in his transfer order does not necessarily mean that the transfer was made on own request, I thought it to be prudent to refer to some contemporaneous documents available in the Office of the respondent authorities to enable me to find out the true nature of the transfer, namely, whether the transfer of the petitioner had been effected on his own request or not. After all, the respondent authorities are the custodian of the record relating to such transfer. Therefore, this Court by the order dated 8-12-2014 had directed the learned standing counsel to produce the file relating to such transfer order. The file could not be produced by him on that day, for which further time was granted to him on 5-2-2015, but when he could not do so again on 18-2-2015, which was the returnable date, this Court on that day had to fix 23-2-2015 for admission hearing and was constraint to observe that even if the record was not produced on that day, the writ petition would be disposed of on the basis of the available materials on record by drawing adverse inference, wherever necessary. The file was not produced even thereafter. This is a case where the best evidence to determine as to whether the transfer of the petitioner was on his request or not is certainly in the possession of the respondent authorities. Therefore, it is the duty of the respondent authorities to lead the best evidence in their possession which could throw light on the issue in controversy, and in case, such material is not produced, as is the case here, it is inevitable for this Court to draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on them.- See Mussauudin Ahmed v. State of Assam, (2009) 14 SCC 541 . Consequently, there is no difficulty in holding that the petitioner was transferred to Bidyapara Boys’ H.S. School on 24-12-1984 in public service and not on his request. Consequently, there is no difficulty in holding that the petitioner was transferred to Bidyapara Boys’ H.S. School on 24-12-1984 in public service and not on his request. It can, therefore, be safely held that the past services rendered by the petitioner prior to his transfer to Bidyapara Boys’ H.S. School cannot be wiped out and that his seniority in this school shall have to be counted from 30-9-1977 when he joined Habidabad Higher Secondary School. Resultantly, he is deemed to be senior to the respondent No. 5, who joined the post of Subject Teacher (Arabic) on 3-9-1984. At this stage, it may be noted that the petitioner has retired from service during the pendency of this writ petition. However, he is entitled to have his seniority corrected in the seniority list of the Bidyapara Boys’ H.S. School by placing him above the respondent No. 5. 9. For the reasons stated in the foregoing, this writ petition partly succeeds. The impugned order dated 15-6-2012 issued by the respondent No. 2 declaring the respondent No. 5 to be the senior-most Teacher of Bidyapara Boys’ Higher Secondary School, Barpeta and above the petitioner cannot stand, and is, therefore, quashed. A fresh inter se seniority list showing the name of the petitioner as senior to the respondent No. 5 shall now be prepared by the respondent No. 2 within 45 (forty-five) days from the date of receipt of this judgment. All consequential reliefs permissible to him under the law shall be granted to him by the respondent authorities even though he has now retired from service. The parties are, however, directed to bear their respective costs.