JUDGMENT : Heard Mr. R. Ali counsel for the petitioner, who submits that the petitioner was appointed to the Agomoni Higher Secondary School on 27.10.1984 as Demonstrator and was given the Graduate Scale of Pay w.e.f. 29.10.1984 (date of joining) vide order dated 27.10.1984. The petitioner was given the Graduate Scale of Pay on the date of joining on the said post of Demonstrator. Thereafter, the petitioner was transferred and posted to PC Institution Higher Secondary School, Gauripur, vide letter dated 22.09.1989 and joined the new place of posting on 26.9.1989. The petitioner is still working in PC Institution Higher Secondary School w.e.f. 26.09.1989 till today. 2. The respondent No. 4 was appointed as Subject Teacher vide order dated 17.07.1987 and she joined her post on 20.07.1987 at PC Institution Higher Secondary School. 3. The petitioner in this case has challenged the order dated 22.12.2009 allowing the respondent No. 4 to hold the charge of in-Charge Principal of PC Institution Higher Secondary School on the ground that the respondent No. 4 is junior to him, as his service in the earlier school w.e.f 29.10.1984 should be counted for the purpose of seniority. 4. The counsel for the petitioner has submitted that the letter dated 30.09.2009 issued by the Under Secretary to the Government of Assam, Education Secondary Department, which is to the effect that “if the Demonstrators have been declared to be Assistant Teacher, their seniority as Assistant Teacher would have to be counted w.e.f the date of coming into force of the Assam Secondary Education (Provincialization) Service Rule, 2003 and not from the date of joining as Demonstrator, when the said post was not treated to be that of Assistant Teacher (Graduate), but was separate category”, having been set aside by order dated 06.10.2011 in WP(C) 4538/2009, the petitioner’s seniority and service has to be counted w.e.f. 29.10.1984. The relevant portion of the order dated 06.10.2011 in WP(C) 4538/2009 is reproduced below:- “13. The result of the foregoing discussion is that this writ petition succeeds. The impugned letters dated 30-9-2009 and dated 5-10-2009 are accordingly quashed. Consequently, the respondent authorities are directed to count the past services rendered by the members of the petitioner-association in the posts of Demonstrators since the dates of their respective appointments to that post for the purpose of all service benefits including seniority and promotion vis-à-vis Graduate Teachers. The impugned letters dated 30-9-2009 and dated 5-10-2009 are accordingly quashed. Consequently, the respondent authorities are directed to count the past services rendered by the members of the petitioner-association in the posts of Demonstrators since the dates of their respective appointments to that post for the purpose of all service benefits including seniority and promotion vis-à-vis Graduate Teachers. Necessary and consequential orders to that effect shall be issued by the respondent authorities within a period of two months from the date of receipt of this judgment. No order as to costs.” 5. The counsel for the petitioner also submits that the impugned order dated 22.12.2009 allowing the respondent No. 4 to hold the current charge of Principal having been issued on the basis of the earlier practise of the Government vide letter dated 30.09.2009 issued by the Secretary to the Government of Assam, Education Secondary Department, which has been subsequently set aside by the order dated 06.10.2011 in WP(C) 4538/2009, the impugned order dated 22.12.2009 is also liable to be set aside. The counsel for the petitioner, thus, submits that he being the senior to the respondent No. 4, he should be allowed to hold the charge of Principal till a regular selection is made as per the Rules. The counsel for the petitioner submits that his educational qualification is B.Sc., B.A. The petitioner’s counsel also submits that during the pendency of this case, he had completed B.Ed. degree from IGNOU. 6. Mr. J. C. Gaur counsel for the respondent No. 4 states that the respondent No. 4 was allowed to hold the charge of Principal vide impugned order dated 22.12.2009, while the present petition has been filed on 30.04.2013. He, thus, submits that the writ petition is liable to be dismissed due to laches. He also submits that as the petitioner had been transferred from Agomoni H.S. School to PC Institution Higher Secondary School vide order dated 22.09.1989 on his own request and as the petitioner had joined the present school on 26.09.1989, the petitioner’s service and seniority should be counted w.e.f 26.09.1989. 7. He also submits that as the petitioner had been transferred from Agomoni H.S. School to PC Institution Higher Secondary School vide order dated 22.09.1989 on his own request and as the petitioner had joined the present school on 26.09.1989, the petitioner’s service and seniority should be counted w.e.f 26.09.1989. 7. The counsel for the respondent No. 4 also states that the transfer order dated 22.09.1989 has been made on the request of the petitioner and as such, as per the law laid down by a Full Bench of this Court in the case of Jamaluddin and Others –Vs- State of Assam, reported in 2012 (1) GLT 1, the petitioner’s past service in Agomoni Higher Secondary School cannot be counted and the petitioner’s service has to be counted from the date of joining on the said post of Demonstrator in the PC Institution Higher Secondary School, i.e. on 26.09.1989. 8. The counsel for the respondent No. 4 also submits that the respondent No. 4 is not holding the charge of Principal on the basis of the earlier Govt. practise as documented in the letter dated 30.09.2009 issued by the Under Secretary to the Government of Assam, Education Secondary Department, but on the basis of seniority, as his date of joining was 20.7.1987 and as the State respondents have counted the seniority of the petitioner from the date of his joining in the new school, i.e., 26.09.1989. 9. The counsel for the respondent No. 4 also submits that the respondent No.4 is having M.Sc. degree and also B. Ed. Degree which is also the qualification required as per the amended Rule 12 the Assam Secondary Education (Provincialised) Service Rules, 2003 for selection/ recruitment to the post of Principal of a Higher Secondary School. 10. Mr. U. K. Goswami counsel for the Secondary Education Department submits that as per the amended Rule 12 of the Assam Secondary Education (Provincialised) Service Rules, 2003, only persons, who have the required qualifications as per the said Rule 12, can be selected for the post of Principal and also be allowed to hold the post/ charge of Principal. 10. Mr. U. K. Goswami counsel for the Secondary Education Department submits that as per the amended Rule 12 of the Assam Secondary Education (Provincialised) Service Rules, 2003, only persons, who have the required qualifications as per the said Rule 12, can be selected for the post of Principal and also be allowed to hold the post/ charge of Principal. Thus, he submits that the question whether the petitioner and the respondent No. 4 have the required qualifications and also the question of seniority being disputed questions of fact, the writ petition should be disposed of by directing the Director of Secondary Education Department to examine the matter and to take a decision on the same. 11. I have heard learned counsels for the parties. 12. A perusal of the petitioner’s transfer order dated 22.9.89 does not show whether the transfer has been made on the request of the petitioner or whether it has been made in public interest. In this respect, a Division Bench of this Court in the case of Abdul Matin Talukdar –vs- Hari Charan Medhi reported in 2006 (Supp) 1 GLT 493 has held that “omission to mention about public interest or administrative exigency in the order per se would not render the resultant transfer to be one on the request of the incumbent transferred.” Accordingly, I hold the petitioner’s transfer order dated 22.9.89 to be in public interest and, as such, the petitioner’s service in his earlier school should also be counted for the purpose of seniority. Petitioner’s earlier service in Agomoni HS School being with effect from 29.10.84, the petitioner has to be considered to be senior than the respondent No.4. 13. The next question that has to be decided is whether the respondent authorities were correct in allowing the respondent No.4 to hold the post of in-Charge Principal of PC Institution Higher Secondary School. As stated earlier, on account of seniority the petitioner has a better claim to the said post. In respect of requisite qualifications, it is seen that Rule 12 of the Assam Secondary Education (Provincialised) Service Rules, 2003 (as amended in 2012) requires, besides other conditions, that the candidate must be a M.A./M.Sc/M.Com with B.T./B.Ed from any recognized University for recruitment to the post of Principal in a Higher Secondary School. In the instant case, the petitioner has B.Sc. & B.A. Degree with B.Ed. In the instant case, the petitioner has B.Sc. & B.A. Degree with B.Ed. However, he does not have a Master’s Degree. Thus, the petitioner, as per Rule 12, does not have the required educational qualification for being selected/recruited to the post of Principal of a Higher Secondary School. The respondent No.4, on the other hand, is having the educational qualification of M.Sc. with B.Ed degree and is, therefore, qualified to be considered for selection and recruitment to the post of Principal of a Higher Secondary School under Rule 12 of the Assam Secondary Education (Provincialised) Service Rules, 2003. 14. The question that has to be decided in the present case is whether the holding of charge of in-charge Principal by a teacher will be on the basis of seniority or it will depend upon whether the said teacher is having the requisite educational qualification for selection/ recruitment for the post of Principal as per the Rules. In the present case, the petitioner is more senior than the respondent No.4, the question of counting the past services of Demonstrators for all purposes having been settled by the order dated 6.10.2011 in WP(C) No. 4538/2009. However, the respondent No.4 has the requisite educational qualification for selection for the post of Principal, but he is junior to the petitioner. The respondent No.4 is also the present Principal-in-Charge. 15. The impugned order dated 22.12.2009 by which the respondent No.4 has been allowed to hold the charge of in-charge Principal is quoted below: “ Smt. Reba Roy, Sr. most subject teacher of P.C. Institution H.S. School, Gauripur under Dhubri District is hereby allowed to hold the current charge of Principal i/c of the same school under F.R.49(C) in addition to her normal duties vide Sri Abu Bakkar Sheikh, Principal i/c retired on 31.10.09. Smt. Reba Roy is also allowed to exercise the financial power for drawal and disbursement of salaries etc of teaching and non teaching staff of the school until further orders. This is a purely temporary arrangement.”. 16. As can be seen from the impugned order dtd. 22.12.2009, the respondent No.4 has been in-charge Principal from 22.12.2009, while the present writ petition has been filed on 30.4.2013. However, as the issue of counting of past service of Demonstrators had been settled only vide order dt. 6.10.2011 in WP(C) No. 4538/2009, I find that the writ petition is not hit by laches. 17. 22.12.2009, the respondent No.4 has been in-charge Principal from 22.12.2009, while the present writ petition has been filed on 30.4.2013. However, as the issue of counting of past service of Demonstrators had been settled only vide order dt. 6.10.2011 in WP(C) No. 4538/2009, I find that the writ petition is not hit by laches. 17. It may be also noted that the State respondents allows the senior-most teacher of the school to hold the charge of Principal, in addition to his normal duties as and when the post of regular Principal in a Provincialised Higher Secondary/ Higher Secondary & Multipurpose Schools fall vacant. The stand of the Director of Secondary Education, Assam in Paragraph 13 of his affidavit-in-opposition dt. 5.10.2010 in WP(C) No. 2995 of 2010 (Ainul Haque Mazumdar –vs- State of Assam & Ors.) is quoted below:- “That the deponent states that due to the aforesaid stalemate, as an when the post of regular Principal in Provincialised Higher Secondary/ Higher Secondary and Multipurpose Schools fell vacant due to retirement from service, the Directorate of Secondary Education, Assam allows the regular Vice-Principal of the said school, if in service, to hold the charge of the Principal in addition to his/ her normal duties. Further, in case the regular Vice-Principal is not in service, then in such a situation, the Directorate of Secondary Education, Assam allows the seniormost teacher of the school to hold the charge of the Principal, in addition to his/her normal duties, in such Schools in the State, under it. Moreover, the Directorate of Secondary Edcuation, Assam does not allow any teacher to hold the charge of the Vice-Principal of such schools, which are managed by In-Charge Principals. The aforesaid processes are being followed for last several years as the selection, appointment and promotion to the post of regular Principal/ Vice-Principal in Provincialised Higher Secondary/ Higher Secondary and Multipurpose Schools is sub-judice.”. 18. The above practice of allowing the senior-most teacher to hold the charge of Principal in a regular vacancy prior to selection/ recruitment of a regular Principal has not debated upon the question whether a junior teacher having the requisite educational qualification needed for selection to the post of Principal as per Rules would be preferred vis-à-vis the senior-most teacher who does not have the requisite educational qualification. 19. In the case of Jagannath Pegu –vs- State of Assam & Ors. 19. In the case of Jagannath Pegu –vs- State of Assam & Ors. Reported in (2007) 3 GLT 389, this Court had considered the case of the petitioner who had the requisite educational qualification for promotion to the post of Headmaster on regular basis and also was the seniormost teacher and in Para 9 has held as under: “9. The petitioner has maintained that he had obtained B.ED degree in the year 1999. He is also a graduate in Science. On the date of the impugned order, he had acquired ten years teaching experience as a graduate teacher. Therefore on the touchstone of the Rules the petitioner was eligible to be considered for promotion for the post of Head Master of the School on regular basis. Needless to say, from that point of view he was unmistakably eligible to be considered to be permitted to hold the charge of the said office.”. 20. The present case in hand is slightly different as the respondent No.4 has the required educational qualification but does not have the seniority. However, keeping in view that the respondent No.4 has the required educational qualification and years of service for being considered for the post of Principal, this Court is of the opinion that even though the respondent No.4 might be junior to the petitioner, the action of the respondents in allowing her to hold the charge of Principal is not illegal. Though the petitioner might be more senior than the respondent No.4, the respondent No.4 having the requisite educational qualification is the more proper choice for holding the charge of Principal till a regular selection is made by the authorities. 21. Thus, when there is a dispute with regard to holding of charge of Principal between a person having the requisite educational qualification for being selected for the post of Principal vis-à-vis an under qualified person who is more senior, the first preference should be given to the person who has the requisite educational qualification and also has the required years of service as provided in Rule 12 of the Assam Secondary Education (Provincialised) Service Rules, 2003 for being considered for selection to the post of Principal. Further, in line with Para 9 the judgment of this Court in Jagannath Pegu (supra), the respondent No.4 being eligible to be considered for selection to the post of Principal on the touchstone of the Rules vis-à-vis the petitioner who does not have the requisite educational qualification, the respondents have not committed any illegality in allowing the respondent No.4 to hold the charge of Principal. 22. In view of the aforesaid reasons, the writ petition fails and is accordingly dismissed. No cost.