Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 944 (GAU)

Samnur Ali v. State of Assam

2016-10-24

UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Subject matter of all the above writ petitions being more or less identical, those were heard together and are being disposed of by this common order. 2. Issue involved in this bunch of writ petitions is holding of Office of Head Master of High School and Principal of Higher Secondary School on In-charge basis on the basis of inter se school seniority. 3. The above issue has confronted the Court in a number of writ petitions primarily because there has been no selection for appointment of Head Master and Principal of High Schools and Higher Secondary Schools on regular basis for one reason or the other which need not be gone into in the present proceeding. Consequently, there has been a spurt of orders allowing senior teachers to be in-charge Headmaster and Principal of High Schools and Higher Secondary Schools. As a result, such temporary arrangements have become the norm rather than the exception. However, for a better understanding of the issue and the possible resolution of the same, it would be apposite to briefly state the facts of the individual cases. WP(C) No. 6047/2012 4. In this writ petition, Sri Samnur Ali is the petitioner. He seeks quashing of order dated 02.02.2012 passed by the Director of Secondary Education, Assam holding respondent No. 4, Sri Nagendra Nath Sarma to be the senior most Assistant Teacher of MNC Balika Vidyapith in the district of Nalbari and allowing him to hold the charge of Head Master of the said school until further orders with financial powers for drawal and disbursement of salary of the school staff. 5. It is stated that petitioner was appointed as Assistant Teacher of Natun Dehar Mouza Milan High School by the Inspector of Schools, Kamrup District Circle on 09.11.1983. Petitioner was thereafter transferred to the Nehru Anchalik High School in his same grade and scale in the interest of public service on 08.05.1989 pursuant to which he joined the transferred school. In the meanwhile, petitioner obtained M.Sc. degree in Mathematics and also obtained B.Ed. degree. 6. Inspector of Schools, Nalbari again transferred the petitioner in the interest of public service from Nehru Anchalik High School to MNC Balika Vidyapith in his own grade and scale of pay on 31.03.1994 pursuant to which petitioner joined on 02.04.1994. 7. In the meanwhile, petitioner obtained M.Sc. degree in Mathematics and also obtained B.Ed. degree. 6. Inspector of Schools, Nalbari again transferred the petitioner in the interest of public service from Nehru Anchalik High School to MNC Balika Vidyapith in his own grade and scale of pay on 31.03.1994 pursuant to which petitioner joined on 02.04.1994. 7. A seniority list of the teachers of MNC Balika Vidyapith (School) was prepared by the In-charge Head Mistress. As per the said seniority list, petitioner was placed above respondent No. 4, Sri Nagendra Nath Sarma and respondent No. 5 Smt. Dipali Das. 8. When the then Head Mistress of the School Smt. Mina Dutta retired from service on attaining the age of superannuation on 28.02.2011, petitioner was allowed to hold the charge of Head Master with financial powers till appointment of regular Head Master. 9. Apprehending that petitioner may be replaced as In-charge Head Master of the School by another teacher, he filed WP(C) No. 2631/2011. In the meanwhile, Under Secretary to the Government of Assam, Education (Secondary) Department issued order/WT message dated 19.05.2011 directing the Inspector of Schools, Nalbari to place Sri Bhabani Prasad Bhagawati as the In-charge Head Master of the School. On 23.05.2011 this Court issued notice in WP(C) No. 2631/2011 and as an interim measure directed maintenance of status quo regarding holding of office of Head Master of the School. Petitioner then filed another writ petition i.e. WP(C) No. 3784/2011 challenging the legality and validity of the order dated 19.05.2011 whereby petitioner was replaced by Sri Bhabani Prasad Bhagawati as In-charge Head Master of the School. This Court by order dated 11.01.2012 dismissed both the writ petitions i.e. WP(C) No. 2631/2011 and 3784/2011. However, while dismissing the writ petitions an observation was made that since Sri Bhabani Prasad Bhagawati would retire from service w.e.f. 31.01.2012, thereafter petitioner would be entitled to take charge of the Office of the Head Master if he was the senior most teacher after Sri Bhabani Prasad Bhagawati. 10. Sri Bhabani Prasad Bhagawati retired from service on 31.01.2012 on attaining the age of superannuation. On the eve of his superannuation, he prepared a seniority list dated 30.01.2012 wherein petitioner was placed at Sl. No. 3 below that of Sri Nagendra Nath Sarma at Sl. No. 2. 10. Sri Bhabani Prasad Bhagawati retired from service on 31.01.2012 on attaining the age of superannuation. On the eve of his superannuation, he prepared a seniority list dated 30.01.2012 wherein petitioner was placed at Sl. No. 3 below that of Sri Nagendra Nath Sarma at Sl. No. 2. Thereafter Director of Secondary Education, Assam passed an order dated 02.02.2012 allowing respondent No. 4 to hold the charge of Head Master. 11. In the meanwhile, petitioner preferred a writ appeal against the order of the learned Single Judge dated 11.01.2012 dismissing his writ petitions. The appeal was registered as Writ Appeal No. 7/2012 and was disposed of vide order dated 29.05.2012 directing the Education Department to prepare seniority list as per law. On the basis of the above order, petitioner submitted a representation before the concerned authority contending that he was senior to respondent No. 4 and therefore he should be allowed to hold the Office of Head Master. This was followed by subsequent representations. Though petitioner submitted representations, seniority position was not rectified. Aggrieved, present writ petition has been filed assailing the legality and validity of the order dated 02.02.2012. 12. Contention of the petitioner is that he had received graduate scale of pay before respondent No. 4 and therefore he is senior to respondent No. 4. Director of Secondary Education wrongly held that transfer of the petitioner to the School was on his own request and therefore he would not be entitled to his past service for counting school seniority whereas such transfer of the petitioner was in the public interest and not on him own request. It is because of this erroneous view that respondent No. 4 was held to be senior to the petitioner in the School and thereafter allowed to be the In-charge Head Master. 13. This Court by order dated 14.12.2012 issued notice and directed maintenance of status quo. Subsequently by order dated 06.08.2013, the impugned order dated 02.02.2012 has been stayed. WP(C) No. 30/2014 14. In this writ petition, Sri Aboni Baruah is the petitioner. He seeks quashing of order dated 20.11.2013 passed by the Director of Secondary Education, Assam allowing respondent No. 4 Sri Mukul Ch. Bordoloi, Assistant Teacher to hold the office of In-charge Head Master of Singia B. Dev. WP(C) No. 30/2014 14. In this writ petition, Sri Aboni Baruah is the petitioner. He seeks quashing of order dated 20.11.2013 passed by the Director of Secondary Education, Assam allowing respondent No. 4 Sri Mukul Ch. Bordoloi, Assistant Teacher to hold the office of In-charge Head Master of Singia B. Dev. High School in the district of Nagaon and further prays for a direction to declare the petitioner as the senior most teacher of the Singia B. Dev High School (School). 15. Petitioner joined the School as Assistant Teacher on 02.11.1984 at the intermediate scale of pay. Subsequently, he was upgraded to the post of Science Graduate Teacher w.e.f. 09.03.1992. 16. Respondent No. 4, Sri Mukul Ch. Bordoloi was a teacher in the Udamari High School. He was transferred to the School by order of the Inspector of Schools, Nagaon dated 31.03.2001. According to the petitioner, transfer of respondent No. 4 to the School was on the basis of a mutual arrangement between respondent No. 4 and another teacher Sri Bidyut Bora. While Sri Bidyut Bora got transferred from the School to Udamari High School, respondent No. 4 got transferred from Udamari High School to the School. It is the contention of the petitioner that because of the mutual nature of transfer, respondent No. 4 would not be entitled to count his past service in the Udamari High School for the purpose of his seniority and his seniority in the School would be counted from 31.03.2001. Therefore, petitioner is the senior most Assistant Teacher of the School. This is reflected in the seniority list dated 01.11.2013 prepared by the Head Master of the School. The then In-charge Head Mistress of the School took voluntary retirement w.e.f. 31.10.2013. By the impugned order dated 20.11.2013 issued by the Director of Secondary Education, Assam, respondent No. 4 has been allowed to be the In-charge Head Master of the School on temporary basis. 17. It is this order which is under challenge in the present proceeding. 18. This Court by order dated 06.01.2014 issued notice and passed an interim order directing the Inspector of Schools, Nagaon to take over charge of the Office of Head Master of the School from respondent No. 4. 19. Respondent No. 2 i.e. Director of Secondary Education, Assam has filed an affidavit. 18. This Court by order dated 06.01.2014 issued notice and passed an interim order directing the Inspector of Schools, Nagaon to take over charge of the Office of Head Master of the School from respondent No. 4. 19. Respondent No. 2 i.e. Director of Secondary Education, Assam has filed an affidavit. It is stated that as per seniority list submitted by the Inspector of Schools, Nagaon respondent No. 4 is the senior most teacher of the School having received the graduate scale of pay on 19.11.1991. On the other hand, petitioner is placed in the second position in order of seniority having received graduate scale of pay w.e.f. 09.03.1992. Both petitioner and respondent No. 4 were eligible to hold the post of Head Master of the School on In-charge basis. Therefore, respondent No. 4 being found senior was preferred. It is stated that seniority list relied upon by the petitioner is a different one, different from the seniority list submitted by the Inspector of Schools. It is further stated that Inspector of Schools, Nagaon had remarked that transfer of respondent No. 4 to the School was in public interest and therefore he is entitled to count his past service for the purpose of determining his seniority in the School. 20. Respondent No. 4, Sri Mukul Ch. Bordoloi has also filed affidavit. In his affidavit, he has stated that he was transferred to the School in public interest vide order dated 31.03.2001. He has denied that his transfer was on his own interest or on mutual adjustment basis. He has asserted that he is senior in service to the petitioner and has rightly been allowed to be the In-charge Head Master of the School. 21. Petitioner had filed reply affidavit to the affidavit filed by respondent No. 2. 22. Thereafter respondent No. 2 has filed another affidavit reiterating the above position. WP(C) No. 135/2014 23. In this case Sri Harish Kr. Saikia is the petitioner and he has challenged the legality and validity of the order dated 20.11.2013 passed by the Director of Secondary Education, Assam allowing respondent No. 4, Sri Mukul Ch. Bordoloi to be the Head Master In-charge of Singia B. Dev High School in the district of Nagaon. 24. It may be mentioned that the order dated 20.11.2013 is also under challenge in WP(C) No. 30/2014. 25. Bordoloi to be the Head Master In-charge of Singia B. Dev High School in the district of Nagaon. 24. It may be mentioned that the order dated 20.11.2013 is also under challenge in WP(C) No. 30/2014. 25. It is stated that petitioner was earlier allowed to be the In-charge Head Master of the School vide order dated 01.11.2013 consequent upon the superannuation of the then In-charge Head Mistress of the School. But by the impugned order dated 20.11.2013, respondent No. 4 was allowed to be the In-charge Head Master of the School replacing the petitioner. 26. Petitioner contends that respondent No. 4 joined the School on 31.03.2001 on a mutual request transfer. Therefore his seniority in the School would be counted from 31.03.2001. On the other hand, petitioner had joined the School as Assistant Teacher on 11.03.1992. Therefore, undoubtedly he is senior to respondent No. 4. In such circumstances, allowing respondent No. 4 to be the In-charge Head Master of the School overlooking the seniority of the petitioner is not justified. Be it stated that in the seniority list dated 01.11.2013 prepared by the Head Mistress of the School petitioner is placed at Sl. No. 2 below Sri Aboni Barua, petitioner in WP(C) No. 30/2014, but above the respondent No. 4. 27. This Court by order dated 09.01.2014 issued notice. 28. Respondent No. 2 i.e. Director of Secondary Education has filed an affidavit. In this affidavit he has stated that respondent No. 4 Sri Mukul Ch. Bordoloi received graduate scale of pay w.e.f. 19.11.1991 and joined the School on transfer on 31.03.2001. In the transfer order it was clearly mentioned that the transfer was made in the interest of public service. Therefore respondent No. 4 would not lose his seniority. Consequently, his seniority would be counted from the date of receiving graduate scale of pay i.e. 19.11.1991. That being the position, respondent No. 4 is the senior most teacher of the School and being eligible he has been allowed to be the In-charge Head Master of the School vide the impugned order dated 20.11.2013. 29. Respondent No. 4 in his affidavit has also reiterated the above position. It is stated that since 20.11.2013 he is functioning as the In-charge Head Master of the School. WP(C) No. 2130/2016 30. In this case Sri. Druna Kanta Gogoi is the petitioner. 29. Respondent No. 4 in his affidavit has also reiterated the above position. It is stated that since 20.11.2013 he is functioning as the In-charge Head Master of the School. WP(C) No. 2130/2016 30. In this case Sri. Druna Kanta Gogoi is the petitioner. He has challenged the legality and validity of the order dated 08.03.2016 passed by the Director of Secondary Education, Assam allowing respondent No. 5, Sri Dipak Ch. Kalita, Demonstrator, to be the In-charge Principal of Rangia Higher Secondary School in the district of Kamrup (R). 31. Case of the petitioner is that he is a master degree holder (M. Sc) in Chemistry and was appointed as Subject teacher of Chemistry in the RBP Higher Secondary School, South Salmara on 02.05.1991. Petitioner was thereafter transferred to Rangia Higher Secondary School, Rangia on 05.10.1993 to fill up a vacant post which had occurred due to resignation of the incumbent. Petitioner joined at Rangia on 11.10.1993. Transfer of the petitioner from RBP Higher Secondary School to Rangia Higher Secondary School was totally in the public interest and was not on the request of the petitioner. 32. Respondent No. 5 was appointed as Demonstrator in the Rangia Higher Secondary School on 05.10.1993 pursuant to which he joined on 06.03.1993. Appointment of respondent No. 5 was regularized on 04.07.2007. 33. In the meanwhile, petitioner had obtained the B.Ed degree. 34. Due to superannuation of the then In-charge Principal of the School, petitioner was allowed to be the In-charge Principal of the School vide order dated 28.09.2015 passed by the Director of Secondary Education. 35. This was challenged by respondent No. 5 before this Court by filing WP(C) No. 6120/2015. However, the said writ petition was subsequently withdrawn. A fresh writ petition being WP(C) No. 6475/2015 was filed by another teacher challenging the legality and validity of the order dated 28.09.2015. The said writ petition was disposed of vide order dated 15.10.2015 by directing the departmental Secretary to consider and dispose of the appeal stated to have been filed in this regard. Thereafter Secretary to the Government of Assam, Education (Secondary) Department passed an order dated 29.02.2016 holding that Sri Dipak Kr. (sic) Kalita i.e. respondent No. 5 seems to be senior amongst the teachers of the School. Director of Secondary Education was directed to give charge of the Office of Principal of the School to respondent No. 5. Thereafter Secretary to the Government of Assam, Education (Secondary) Department passed an order dated 29.02.2016 holding that Sri Dipak Kr. (sic) Kalita i.e. respondent No. 5 seems to be senior amongst the teachers of the School. Director of Secondary Education was directed to give charge of the Office of Principal of the School to respondent No. 5. Thereafter, the impugned order dated 08.03.2016 was passed. 36. This Court by order dated 30.03.2016 issued notice. 37. Respondent No. 5 has filed affidavit supporting the Government order dated 29.02.2016 as well as the impugned order dated 08.03.2016. It is stated that he joined as Demonstrator of Chemistry in Rangia Higher Secondary School on 06.10.1993 whereas petitioner was transferred to the said School on 11.10.1993. Transfer of the petitioner was not in the public interest for which no TA and DA was provided. The then In-charge Principal of Rangia Higher Secondary School had prepared a seniority list of the teaching staff of the School in which respondent No. 5 was placed at Sl. No. 15 and petitioner was placed at Sl. No. 16. The teaching staff above Sl. No. 15 were not eligible to hold the office of Principal due to non-fulfillment of the eligibility criteria. WP(C) No. 2195/2016 38. In this case Sri Apurba Kr. Hazarika is the petitioner. He seeks quashing of seniority list dated 04.03.2016 of the Doomdoomia Balisatra Higher Secondary School in the district of Nagaon as well as the order dated 16.03.2016 passed by the Director of Secondary Education, Assam allowing respondent No. 5, Md. Hashanuz Zaman Ansary, Assistant Teacher to be the Principal In-charge of the Doomdoomia Balisatra Higher Secondary School. 39. According to the petitioner he has both MA and B.Ed degree. He was appointed as Assistant teacher in the Jakhalabandha Higher Secondary School on 05.09.1988 in the intermediate scale. He was upgraded to the graduate scale w.e.f. 16.11.1991. 40. Respondent No. 5 i.e. Hashanuz Zaman Ansary was serving as Assistant Teacher of Batamari High School. He applied for transfer to Doomdoomia Balisatra Higher Secondary School which was granted by the Inspector of Schools, Nagaon on 15.09.2000. Respondent No. 5 joined the Doomdoomia Balisatra Higher Secondary School (School) on transfer on 20.09.2000. 40. Respondent No. 5 i.e. Hashanuz Zaman Ansary was serving as Assistant Teacher of Batamari High School. He applied for transfer to Doomdoomia Balisatra Higher Secondary School which was granted by the Inspector of Schools, Nagaon on 15.09.2000. Respondent No. 5 joined the Doomdoomia Balisatra Higher Secondary School (School) on transfer on 20.09.2000. According to the petitioner, he is senior to respondent No. 5 since respondent No. 5 had joined the School on transfer at his own request and therefore his seniority in the School would be counted from 20.09.2000. Notwithstanding the same, the outgoing Principal In-charge prepared a seniority list on 04.03.2016 wherein respondent No. 5 was made senior to the petitioner. Following the above seniority list impugned order dated 16.03.2016 was passed by the Director of Secondary Education, Assam. 41. Aggrieved, present writ petition has been filed. 42. This Court by order dated 31.03.2016 issued notice and passed an interim order staying the impugned order dated 16.03.2016. Inspector of Schools, Nagaon was asked to take over charge of the office of Principal of the School. 43. Respondent No. 2, i.e. Director of Secondary Education, Assam in his affidavit has stated that though in the initial transfer order dated 15.09.2000 whereby respondent No. 5 was transferred from Batamari High School to Doomdoomia Balisatra Higher Secondary School, it was remarked that the transfer was on the own request of respondent No. 5, by a corrigendum issued by the Inspector of Schools, Nagaon on 07.10.2002 it was clarified that transfer of respondent No. 5 was in public interest. Therefore transfer of respondent No. 5 is to be treated as transfer in public interest which would entitle respondent No. 5 to count his previous service for determining his School seniority. It is stated that respondent No. 5 received graduate scale of pay on 19.11.1991 whereas petitioner received graduate scale of pay on 24.03.1992. Thus respondent No. 5 is senior to the petitioner. 44. Respondent No. 5 filed an application for vacation of the interim order dated 31-03-2016. The said application was registered as IA No. 1462/2016. This Court by order dated 14-07-2016 disposed of the IA by taking the view that the entire writ petition should be taken up for disposal at the admission stage. 44. Respondent No. 5 filed an application for vacation of the interim order dated 31-03-2016. The said application was registered as IA No. 1462/2016. This Court by order dated 14-07-2016 disposed of the IA by taking the view that the entire writ petition should be taken up for disposal at the admission stage. However, on a request made by learned Counsel for respondent No. 5, Court observed that the averments made in the IA may be treated as averments in opposition to the writ petition. 45. In his IA, respondent No. 5 has stated that his date of birth is 01-01-1961 whereas date of birth of the writ petitioner is 30-12-1964. Date of appointment of respondent No. 5 as Assistant teacher was 01-02-1985 whereas date of appointment of writ petitioner was 05-09-1988. Respondent No. 5 received graduate scale of pay w.e.f 19-11-1991 whereas the writ petitioner received the same w.e.f. 24-03-1992. Therefore, from all accounts respondent No. 5 is senior to the writ petitioner. Transfer of respondent No. 5 to the School dated 15-09-2000 was in the public interest which has been clarified by the Inspector of Schools, Nagaon District Circle by way of corrigendum. WP (C) No. 2420/2016 46. In this case, Shri Naren Kaivarta is the petitioner. He seeks a declaration that he is senior to respondent No. 4 in the Rangia Higher Secondary School and further seeks quashing of the order dated 08-03-2016 passed by the Director of Secondary Education, Assam allowing Shri Dipak Chandra Kalita, Demonstrator of Rangia Higher Secondary School (School) to be the in-charge Principal of the said school. 47. Be it stated that the order dated 08-03-2016 has also been impugned in WP(C) No. 2130/2016. 48. According to the petitioner, he was appointed as Demonstrator of Physics in the School on 04-01-1984 and his service was regularized on 09-10-1988. As against this, respondent No. 4 was appointed as Demonstrator of Chemistry on 05-10-1993 and his service was regularized on 04-07-2007. In the seniority list of teaching staff of the School dated 26-08-2015 prepared by the outgoing Principal-in-charge, petitioner was placed at Sl.No.3 whereas respondent No. 4 was placed at Sl. No. 15. Notwithstanding the same, impugned order dated 08-03-2016 has been issued compelling the petitioner to move the Court. 49. This Court by order dated 13-05-2016 issued notice. 50. Respondent No. 4 has filed affidavit contesting the case projected by the petitioner. No. 15. Notwithstanding the same, impugned order dated 08-03-2016 has been issued compelling the petitioner to move the Court. 49. This Court by order dated 13-05-2016 issued notice. 50. Respondent No. 4 has filed affidavit contesting the case projected by the petitioner. He has stated that though petitioner was placed above him in the seniority list, he did not have B.Ed. qualification which is an essential eligibility criteria for appointment as Principal. On 28-09-2015 Director of Secondary Education allowed one Shri Druna Kanta Gogoi to be the Principal-in-Charge of the School though Shri Gogoi had joined the School on a much later date by way of transfer at his own request. This led to filing of writ petitions following which matter was remanded to the departmental Secretary for taking fresh decision. Departmental Secretary thereafter passed order dated 29-02-2016 holding respondent No. 4 to be senior pursuant to which impugned order dated 08-03-2016 was issued. WP (C) No. 2797/2016 51. In this case, Shri Nuron Nabi Mondal is the petitioner. He seeks quashing of order dated 02-05-2016 passed by the Director of Secondary Education, Assam allowing respondent No. 5 Abul Hassem to be the Principal-in-charge of Kharmuza Higher Secondary School in the district of Goalpara. 52. Case of the petitioner is that he was appointed as Assistant Teacher (Mathematics) in the Bapuji High School on 17-06-1984. Respondent No. 5 was appointed as Assistant Teacher (Science) of Rajmita High Madrassa on 25-10-1985. 53. Petitioner was transferred from Bapuji High School to Kharmuza Higher Secondary School on 19-05-1992. On the other hand, respondent No. 5 was also transferred from Rajmita High Madrassa to Kharmuza Higher Secondary School (School) on 18-06-1992. In both the transfer orders it was mentioned that no TA / DA would be admissible. 54. Be that as it may, following superannuation of Shri Chandulla Miah as Principal-in-charge of the School on 31-01-2016, order dated 08-02-2016 was passed by the Director of Secondary Education, Assam allowing the petitioner to be the Principal-in-charge of the school. 55. At that stage respondent No. 5 filed WP(C) No. 1707/2016 before this Court challenging the legality and validity of the order dated 08-02-2016. The writ petition was disposed of vide order dated 18.03.2016 by permitting respondent No. 5 to submit fresh representation before the Director for determination of their inter-se-seniority afresh. Thereafter, the impugned order dated 02.05.2016 was issued. 56. At that stage respondent No. 5 filed WP(C) No. 1707/2016 before this Court challenging the legality and validity of the order dated 08-02-2016. The writ petition was disposed of vide order dated 18.03.2016 by permitting respondent No. 5 to submit fresh representation before the Director for determination of their inter-se-seniority afresh. Thereafter, the impugned order dated 02.05.2016 was issued. 56. This Court by order dated 06-05-2016 had issued notice and as an interim measure, stayed the operation of the impugned order dated 02-05-2016. WP (C) No. 3160/2016 57. In this case, Shahab Uddin Ahmed is the petitioner and he has challenged the legality and validity of the order dated 02-05-2016 passed by the Director of Secondary Education, Assam allowing respondent No. 5 Abul Hassem to be the in-charge Principal of Kharmuza Higher Secondary School in the district of Goalpara. It may be mentioned that the impugned order dated 02-05-2016 has also been put to challenge by Sri Nuron Nabi Mondal in WP (C) No. 2797/2016. Be it stated that Shri Nuron Nabi Mondal has been arrayed as respondent No. 6 in the present writ petition. 58. Case of the petitioner is that he was appointed as Subject Teacher of Assamese in the Kharmuza Higher Secondary School on 26-03-1996. Post of Principal of the Kharmuza Higher Secondary School (School) was lying vacant due to superannuation of the incumbent. As a result, the senior most teacher was allowed to function as In-charge Principal of the School. In this way one Chandulla Miah was allowed to be the In-charge Principal of the School and when he retired on 31-01-2016, respondent No. 6 Nuron Nabi Mondal was allowed to be the In-charge Principal of the School vide the order dated 08-02-2016 passed by the Director of Secondary Education, Assam. 59. This came to be challenged by respondent No. 5 Abul Hassem before this Court by filing WP (C) No. 1707/2016. The said writ petition was disposed of vide order dated 18-03-2016 by permitting respondent No. 5 to file fresh representation before the Director of Secondary Education, Assam for determination of seniority afresh, who was thereafter directed to pass a reasoned order. 60. Following the same, impugned order dated 02-05-2016 came to be passed, which has been impugned in the present writ petition. 61. This Court by order dated 27-05-2016 had issued notice. 62. Heard Mr. 60. Following the same, impugned order dated 02-05-2016 came to be passed, which has been impugned in the present writ petition. 61. This Court by order dated 27-05-2016 had issued notice. 62. Heard Mr. P.K.R. Choudhury, learned counsel for the petitioner in WP(C) 6047/2012, Mr. P.P. Baruah, learned counsel for the petitioner in WP(C) No. 30/2014, Mr. D.C. Kath Hazarika, learned counsel for the petitioner in WP(C) No. 135/2014, Mr. A. Dev, learned counsel for the petitioner in WP(C) No. 2130/2016, Mr. B.N. Gogoi, learned counsel for the petitioner in WP(C) No. 2420/2016, Mr. D.A. Kaiyum, learned counsel for the petitioner in WP(C) No. 2798/2016 and Mr. A.M. Khan, learned counsel for the petitioner in WP(C) No. 3160/2016. Also heard Mr. N. Sharma, Mr. A. Deka and Mr. P. Saikia, learned Standing Counsel, Education Department. Mr. U.K. Nair, learned counsel has appeared for respondent No. 4 in WP(C) No. 6047/2012, Mr. D.C. Bora, learned counsel for respondent No. 4 in WP(C) No. 30/2014, Mr. D. Barman, learned counsel for respondent No. 4 in WP(C) No. 135/2014, Mr. I. Choudhury and Mr. A.K. Bora, learned counsel for respondent No. 5 in WP(C) No. 2130/2016 and for respondent No. 4 in WP(C) No. 2420/2016, Mr. A. Sharma, learned counsel for respondent No. 5, Mr. T.J. Mahanta, learned Senior counsel assisted by Mr. H. Das, learned counsel for respondent No. 5 in WP(C) No. 2797/2016 and Mr. H.R. Ahmed, learned counsel for respondent No. 5 in WP(C) No. 3160/2016. 63. In the course of hearing, Court requested Mr. M.K. Choudhury, learned senior counsel, who was present in the Court, to assist the Court in the proceeding. Accordingly, Mr. Choudhury, learned senior counsel, has made elaborate submissions which have been taken note of. 64. Facts of all the cases comprising the present bunch of writ petitions have been briefly noted. While the main issue is regarding holding of office of Headmaster and Principal of High School and Higher Secondary School respectively on in-charge basis, the common thread running through all the writ petitions and which is the basis of challenge is the question relating to determination of inter se seniority of the teachers as whoever is determined to be the senior-most has been allowed to be the in-charge Headmaster or the in-charge Principal, as the case may be. Why there is necessity for such temporary arrangement and why the posts of Headmaster or Principal have not been filled up on regular basis which has necessitated such temporary measures is a separate issue altogether and need not be gone into in the present proceeding. 65. While hearing WP(C) No. 2195/2016, this Court passed the following order on 12.08.2016:- "Both petitioner and respondent No. 5 are Assistant Teachers of Doomdoomia Balisatra Higher Secondary School (school) in the district of Nagaon. According to the petitioner, he is the senior-most Assistant Teacher of the school whereas according to respondent No. 5, it is he who is the senior-most Assistant Teacher. Petitioner has based his claim on the ground that transfer of respondent No. 5 to the school was on his own request thereby not entitled to count the previous service for the purpose of seniority but according to Mr. A. Sharma, learned counsel for respondent No. 5, subsequently it was clarified by the Inspector of Schools that such transfer was in the public interest. While this dispute as to seniority was going on, impugned order dated 16.03.2016 was passed by the Director of Secondary Education, Assam, allowing respondent No. 5 to be the in-charge Principal of the school. This has been put to challenge in the writ petition along with the issue of seniority. Director of Secondary Education, Assam, in his affidavit has stated that seniority list prepared by the Principal is not the final determination of seniority. Seniority is determined as per the provisions contained in Assam Secondary Education (Provincialised) Service Rules, 2003 (2003 Rules). On consideration of the above, it is seen that Rule 24 of the 2003 Rules deals with seniority. While at this stage, it may not be necessary to delve into detail regarding the procedure for determination of seniority as prescribed therein, what is discernible from a reading of Rule 24 is that no authority is mentioned therein on whose approval seniority list would attain finality. On the other hand, Rule 30 provides that if any question arises regarding interpretation of Rules, decision of the Government shall be final. The issue raised in the writ petition would, therefore, require some deliberation. To enable proper adjudication of the case, Mr. Sharma, learned Standing Counsel, shall look into the matter and apprise the Court on the next date regarding stand of the Education Department in this regard." 66. The issue raised in the writ petition would, therefore, require some deliberation. To enable proper adjudication of the case, Mr. Sharma, learned Standing Counsel, shall look into the matter and apprise the Court on the next date regarding stand of the Education Department in this regard." 66. Likewise, while hearing WP(C) Nos.30 and 135/2014, the following order was passed on 16.08.2016:- "Challenge made in this writ petition is to the order dated 20.11.2013, passed by the Director of Secondary Education, Assam allowing respondent No. 4 to hold charge of Headmaster of the Singia B Dev High School in the district of Nagaon. In the course of hearing, it has come to light that the dispute has arisen because of rival claims to seniority in the school. While petitioner claims to be the senior most Assistant Teacher of the School, contra position has been taken by respondent No. 4. Related issue is whether transfer of respondent No. 4 to the School was on his own request or not. Rule 24 of Assam Secondary Education (Provincialised) Service Rules, 2003, lays down the procedure for determination of inter-se seniority. However, on a careful reading of the said provision, it is not very clear as to who is the final authority to determine inter-se-seniority. Non-finality to determination of inter-se seniority has given rise to many litigation before the Court. The question as to who is the competent authority to finally determine inter-se-seniority is being examined by the Court in WP(C) No. 2195/2016, which is fixed for further consideration on 26.08.2016." 67. Again, while hearing WP(C) No. 6047/2012, Court passed the following order on 29.08.2016:- "In the course of hearing of the writ petition, an issue of considerable importance has surfaced. The issue is the authority responsible for preparation of gradation lists of different categories of teachers school-wise having regard to the mandate of sections 24 and 25 of the Assam Secondary Education (Provincialised) Service Rules, 2003. It may be noticed that this issue has also been raised in WP(C) No. 2195/2016. Having regard to the importance of the subject matter, Court has also requested Mr. MK Choudhury, learned Senior Counsel, who is present in Court, to assist the Court in the proceeding." 68. It may be noticed that this issue has also been raised in WP(C) No. 2195/2016. Having regard to the importance of the subject matter, Court has also requested Mr. MK Choudhury, learned Senior Counsel, who is present in Court, to assist the Court in the proceeding." 68. When the above bunch of cases were taken up for consideration on 31.08.2016, this Court noted that the issue, which has cropped up for consideration is the authority to determine inter se seniority of teachers of High Schools and Higher Secondary Schools for appointment of in-charge Headmaster and Principal on temporary basis till regular appointments are made. It was observed that recent experiences have shown that such temporary appointments have become the norm rather than the exception. Referring to the earlier orders passed by the Court, Court took the view that having regard to the importance of the issue which is responsible for filing of a large number of cases in the Court, Commissioner and Secretary to the Government of Assam, Education (Secondary) Department should file an affidavit as to how the provisions contained in Rules 24 and 25 of the Assam Secondary Education (Provincialised) Service Rules, 2003 could be given effect to. It was also noted that departmental Commissioner and Secretary may indicate the manner of preparing and finalizing the gradation list of teachers, both of High Schools and Higher Secondary Schools, as seniority is one of the prime conditions for making in-charge appointments, further observing that this has become necessary because Rules are silent as to who is the competent authority to finally determine inter se seniority of the teachers. It was noted that State had also failed to issue any notification or Office Memorandum to fill up the lacuna in the Rules. 69. Thereafter, this bunch of cases came up for consideration on 22.09.2016. In the course of the hearing, Mr. N. Sharma, learned Standing Counsel, Secondary Education Department, placed before the Court a copy of a notification dated 19.09.2016 issued by the Secretary to the Government of Assam, Secondary Education Department clarifying that seniority of graduate teacher would be determined by the appointing authority, i.e., Inspector of Schools with an appeal provision to the next higher authority, i.e., Director of Secondary Education. In respect of post-graduate teacher, authority to determine seniority would be the Director of Secondary Education with provision for appeal to the next higher authority, i.e., Secretary to the Govt. of Assam, Secondary Education Department. Mr. Choudhury, learned Senior counsel, while conceding that this notification has clarified the position to a large extent, however, submitted that the notification is silent regarding finalization of gradation list of teachers of Higher Secondary Schools having both post-graduate and graduate teachers as both these categories form the feeder cadre for the post of Principal, only difference being with regard to the number of years of experience. He, therefore, made a submission that it would be appropriate if gradation list of teachers of Higher Secondary School is finalized by the Director of Secondary Education keeping in mind that such gradation list would have to be school-wise having regard to the mandate of Rule 25 of the Assam Secondary Education (Provincialised) Service Rules, 2003. 70. In view of issuance of the Government notification dated 19.09.2016, Court did not insist on filing of affidavit as directed in the order dated 31.08.2016. 71. On 22.09.2016, arguments were concluded and 05.10.2016 was fixed for delivery of judgment. However, for paucity of time, judgment could not be delivered on 05.10.2016 and was re-fixed for delivery of judgment today. 72. Before proceeding further, it would be appropriate to briefly refer to the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003 (2003 Rules). The 2003 Rules have been enacted by the State in exercise of powers conferred by the proviso to Article 309 of the Constitution of India to regulate recruitment and conditions of service of persons appointed to the Assam Secondary Education (Provincialised) Service (Service). As per Rule 3, service comprises of Class-II (Senior) and Class-II (Junior). Class-II (Senior) includes the cadres of Principal, Vice Principal, Post-Graduate Teacher and Headmaster/Superintendent whereas Class-II (Junior) includes amongst others the cadres of Assistant Headmaster/Assistant Superintendent, Graduate Teacher, etc. 73. As per Rule 2(b)(i), Director of Secondary Education, Assam is the appointing authority in respect of Principal, Vice Principal, Headmaster, Headmistress, Assistant Headmaster, Assistant Headmistress, Post-Graduate Teacher and Demonstrator whereas Rule 2(b)(ii) mentions that Inspector of Schools of the concerned district is the appointing authority in respect of Graduate Teacher, Under-graduate Teacher and non-teaching staff. 73. As per Rule 2(b)(i), Director of Secondary Education, Assam is the appointing authority in respect of Principal, Vice Principal, Headmaster, Headmistress, Assistant Headmaster, Assistant Headmistress, Post-Graduate Teacher and Demonstrator whereas Rule 2(b)(ii) mentions that Inspector of Schools of the concerned district is the appointing authority in respect of Graduate Teacher, Under-graduate Teacher and non-teaching staff. 'High School' has been defined in Rule 2(q) to mean a school teaching classes from V to X or from Class VIII to X, as the case may be whereas under Rule 2(r), Higher Secondary School has been defined to mean schools imparting education up-to Class XII or teaching classes of Higher Secondary first year and second year. Though Graduate Teacher and Post-Graduate Teacher have been defined, it may not be necessary to examine in depth the definition of the above two categories of teachers. 74. Rule 7 mentions that recruitment to the post of Post-Graduate Teacher in provincialised Higher Secondary Schools shall be made by direct recruitment in the manner prescribed. Rule 8 provides that recruitment to the post of Graduate Teacher in provincialised High or Higher Secondary or Higher Secondary and Multipurpose Schools shall be made by direct recruitment in the manner provided. 75. Rule 12 deals with recruitment of Principal in Higher Secondary/Higher Secondary and Multipurpose School. Sub-Rule (1) says that post of Principal shall be filled up by way of direct recruitment whereas Sub-Rule (2) lays down the minimum qualification for appointment to the post of Principal. Amongst others, a candidate must be MA/M.Sc/M.Com with BT/B.Ed degree from a recognized university having uniformly good academic career. In case of Post-Graduate Teacher, he should have rendered 15 years of service as Post-Graduate Teacher or Vice Principal or both in any of the provincialised Higher Secondary Schools. In case of Graduate Teacher, he should have 17 years of teaching experience as Graduate Teacher in any Higher Secondary/Higher Secondary and Multipurpose School. 76. Rule 14 provides for amongst others recruitment to the post of Headmaster/ Headmistress of High School, Higher Secondary School and Higher Secondary and Multipurpose School. The post of Headmaster/Headmistress as well as that of Superintendent is required to be filled up by way of promotion on the basis of school-wise seniority. The minimum eligibility criteria for the post of Headmaster/Headmistress/ Superintendent is graduation with BT/B. Ed degree having 10 years of teaching experience as Graduate Teacher. 77. The post of Headmaster/Headmistress as well as that of Superintendent is required to be filled up by way of promotion on the basis of school-wise seniority. The minimum eligibility criteria for the post of Headmaster/Headmistress/ Superintendent is graduation with BT/B. Ed degree having 10 years of teaching experience as Graduate Teacher. 77. Rule 24 is relevant and it deals with seniority. Sub-Rule (1) provides for cadre-wise seniority to be determined on the basis of position in the select list. As per Sub-Rule (2), if there is delay in joining beyond the stipulated period, seniority would be determined in accordance with the date of joining. As per Sub-Rule (3), seniority of a member of the service in a cadre who joins in a school otherwise than by way of direct recruitment, i.e., on transfer or otherwise, shall be determined as per the date of joining the school in the concerned cadre. If a member joins the school by way of transfer from another school, his seniority in the school shall be determined from the date of his joining the school in the concerned cadre and the seniority in earlier school or in the same school in a different cadre shall not be taken into account. As per Sub-Rule (4), seniority of a Graduate Classical Teacher shall be counted at par with other general Graduate Teachers. Sub-Rule (5) provides that if the date of joining in the school of two or more members of the service in a cadre is same, inter se seniority shall be determined taking into account their dates of birth. 78. Pausing for a moment, it may be noted that Rule 24 lays down the detailed procedure for determining inter se seniority of teachers of a cadre. However, a crucial aspect which may be noted is that as per Sub-Rule (3), seniority of a teacher joining a school on transfer would be counted from the date of his joining the school in the concerned cadre. Prima facie, it appears that Sub-Rule (3) does not make any distinction between transfer in public interest and transfer on own request though it is seen from the stand taken by the departmental authorities in quite a few of the petitions presently being heard that transfer in public interest would not result in loss of seniority whereas it would be the case in the event of transfer being on own request. However, since this issue has not been taken up by any of the parties and has also not been argued, Court would refrain from expressing any view on this aspect of the matter. 79. Proceeding further, Rule 25 provides for preparation of gradation list. As per Rule 25, a gradation list containing the names of all members shall be prepared and published every year in order of seniority school-wise containing such other particulars, such as date of birth, date of joining, etc. Thus, as per Rule 25, a gradation list containing the names of all the teachers with particulars of service is required to be prepared and published in order of seniority school-wise. Implicit in this is that seniority of the members of the service would be determined cadre-wise. In other words, though there may be one common gradation list, it may have different segments corresponding to the different cadres, such as, Post-Graduate Teacher, Graduate Teacher, etc. All Post-Graduate Teachers would come under the cadre of Post-Graduate Teacher and their inter se seniority would be determined within the cadre. Same would be the position in the case of Graduate Teacher. 80. But as was noticed in the various orders passed by this Court, which have been extracted above, Rules 24 and 25 are silent as to who is the authority to finally determine such inter se seniority and to prepare and publish such gradation list. 81. As already noticed above, during the course of hearing, Government of Assam in the Secondary Education Department had issued notification dated 19.09.2016, which was placed before the Court by learned Standing Counsel and which has been taken on record. The notification dated 19.09.2016 reads as under: "GOVERNMENT OF ASSAM SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-28 ORDERS BY THE GOVERNOR NOTIFICATION Dated Dispur the 19th September, 2016 No. ASE 82/2014/Pt-I/16 : Whereas rule 24 and rule 25 of the Assam Secondary Education (Provincialised) Service Rules, 2003 have detail criteria/procedure for fixation of inter-se seniority and preparation of gradation list of Graduate Teacher and Post Graduate Teacher, the Government of Assam in the Secondary Education Department is pleased to provide that - (i) The issues relating to seniority of Graduate Teacher will be determined by the appointing authority, i.e., Inspector of School. Any appeal in this regard will be taken and disposed by the next higher authority, i.e., Director of Secondary Education. Any appeal in this regard will be taken and disposed by the next higher authority, i.e., Director of Secondary Education. (ii) The issues relating to seniority of Post Graduate Teacher will be determined by the appointing authority, i.e., Director of Secondary Education. Any appeal in this regard will be taken and disposed by the next higher authority, i.e., the Secretary of the Secondary Education Department. (R.C. Jain, IAS) Secretary to the Government of Assam, Secondary Education Department." 82. A perusal of the said notification would go to show that seniority of a Graduate Teacher would be determined by the appointing authority, i.e., Inspector of Schools. Any graduate teacher, who is aggrieved by such determination of his seniority, may prefer appeal before the next higher authority, i.e., Director of Secondary Education. In so far Post-Graduate Teachers are concerned, their inter se seniority would be determined by the appointing authority, i.e., Director of Secondary Education with appeal provision before the Secretary to the Government of Assam, Education (Secondary) Department. 83. It has already been noticed in the order dated 22.09.2016 that the above Government notification has filled up the lacuna in Rules 24 and 25 of the 2003 Rules to a large extent. In the case of a High School, there may not be any difficulty in giving effect to the aforesaid notification. However, in the case of a Higher Secondary School or Higher Secondary and Multipurpose School, there may arise some difficulty as a common gradation list would have to be prepared under Rule 25 comprising different cadres and as per Rule 12, both the Post-Graduate Teachers and Graduate Teachers are eligible to be appointed as Principal, the only difference being that in case of Post-Graduate Teacher, he should have 15 years of service experience whereas in case of Graduate Teacher, he should have 17 years of service experience. Therefore, it would be more appropriate if the gradation lists of Higher Secondary and Higher Secondary and Multipurpose Schools are prepared and published as per Rule 25 of the 2003 Rules by the Director of Secondary Education, Assam. Therefore, it would be more appropriate if the gradation lists of Higher Secondary and Higher Secondary and Multipurpose Schools are prepared and published as per Rule 25 of the 2003 Rules by the Director of Secondary Education, Assam. Since mandate of Rule 25 is preparation of such gradation list school-wise every year, it would be incumbent upon the Inspector of Schools in case of High Schools and Director of Secondary Education, Assam in case of Higher Secondary and Higher Secondary and Multipurpose Schools to prepare and publish such school-wise seniority list every year. Before publishing the gradation list, it is necessary that a draft gradation list be published which should be made available to all the teachers who can thereafter submit objection, if any, within such period as may be specified by the Inspector of Schools or by the Director of Secondary Education, Assam, as the case may be. After the objections are disposed of, final gradation list should be published. Once final gradation list is published, further grievance may be attended to by the appellate authorities as per notification dated 19.09.2016. Based on such gradation list, the concerned authority may pass necessary orders including in the event of making in-charge arrangement on temporary basis. Since gradation list is to be prepared and published year-wise and having regard to the scheme of objection and appeal, it would be just and proper if gradation list is published in the first/early part of the year itself for which necessary inputs may be called for from the respective schools. The detailed schedule for preparation and publication of the gradation list by the two authorities may be worked out by them having regard to the discussions made above. It is hoped and expected that such exercise may bring down the number of avoidable litigations before the Court. Respondents are accordingly directed to give effect to the above directions from 01.01.2017 onwards. 84. Reverting to the individual cases, the parties are relegated to the concerned appellate authorities for de novo decision. To facilitate such decision, any order passed earlier by the departmental Secretary would not come in the way. Such decision by the appellate authorities shall be taken within a period of four weeks from the date of receipt of a certified copy of this order. To facilitate such decision, any order passed earlier by the departmental Secretary would not come in the way. Such decision by the appellate authorities shall be taken within a period of four weeks from the date of receipt of a certified copy of this order. Furthermore, such decision by the appellate authorities would not come in the way of year-wise publication of the gradation list as per mandate of Rule 25 and as directed by this Court effective from 01.01.2017. Till the above exercise is carried out by the appellate authorities within the stipulated period, status quo as on today in respect of each of the writ petitions comprising the bunch shall be maintained. 85. All the writ petitions are accordingly disposed of. However, there shall be no order as to cost.