JUDGEMENT AND ORDER : 1. Heard Mr. B. Chakraborty, the learned counsel for the petitioner. The respondent Nos.1—3 are represented by Mr. N. Sarma, the learned standing counsel for the Department of Secondary Education. The contesting respondent Kalyani Choudhury (respondent No.5) is represented by Mr. N. Baruah, the learned counsel. 2. The challenge here is to the order dated 30.1.2012 (Annexure-VII), whereby, the petitioner’s colleague in the Rajgarh High School (hereinafter referred to as ‘the School’), Kalyani Choudhury (respondent No.5) was promoted as the Assistant Headmistress, on the recommendation made by the State Selection Board. The Assam Secondary Education (Provincialisation) Service Rules, 2003 (hereinafter referred to as ‘the Provincialisation Rules’), governs the promotion. Under Rule 14(3), the seniority in service in the graduate scale of pay, determines the issue. 3. The petitioner entered service as an Assistant Teacher (inter mediate) with the appointment order dated 30.1.1996 (Annexure-II). The initial ad-hoc appointment was then regularized on 16.9.1998 (Annexure-III), whereby, the petitioner was upgraded to the graduate scale of pay, in the available vacancy of Assistant Teacher, in the School. 4. On the other hand, the respondent Kalyani Choudhury was appointed earlier on 3.3.1994 (Annexure-I) but she was appointed as a senior Hindi Teacher and not as an Assistant Teacher, in the school. 5. At one stage, the petitioner’s placement in the graduate scale, prior to the respondent, against available vacancy, was questioned and under the communication dated 5.12.1998, direction was issued for adjustment of the respondent in the same post, where the petitioner was regularized. But this communication of 5.12.1998 was immediately kept in abeyance, with the follow up communication dated 27.1.1999 (Annexure-IV). In fact, clear direction was issued by the Government to the Director of Secondary Education (DSE) to, not to give effect to the earlier order of 5.12.1998. The DSE was further directed to regularize the respondent No.5, in a vacant post of Hindi Teacher and the petitioner was allowed to continue as the Assistant Teacher, as per her regularization. 6. Thereafter, when a Hindi Teacher of the school retired on 31.3.2010, the respondent No.5 was regularized in the said vacancy w.e.f. 1.4.2000 and since Kalyani Choudhury was considered to be an excess teacher, her post was abolished. 7. 6. Thereafter, when a Hindi Teacher of the school retired on 31.3.2010, the respondent No.5 was regularized in the said vacancy w.e.f. 1.4.2000 and since Kalyani Choudhury was considered to be an excess teacher, her post was abolished. 7. The following chart will indicate at a glance, the service details of the petitioner and the contesting litigant Kalyani Choudhury (respondent No.5) : LIST OF EVENTS NAME DATE OF JOINING IN SERVICE REGULARISATION PROMOTION TO ASSTT. HEADMASTER GOVT. ORDERS Manju Deka (Petitioner) 30.1.1996 (As an Intermediate Teacher, on ad-hoc basis) 16.9.1998 (In graduate scale as Asstt. Teacher) N/A 5.12.1998 (Govt. directed the DSE to regularize the Petitioner) Kalyani Choudhury (Respondent No.5) 3.3.1994 (As Sr. Hindi Teacher, on ad-hoc basis) 21.3.2001 (In graduate scale as Hindi Teacher) 30.1.2012 (under challenge) 27.1.1999 (The 5.12.1998 order stayed – R6 be regularized and to continue as special case) 8. During the regular selection process for the Asstt. Headmistress vacancies, the candidature of four teachers from the Rajgarh Girls’ High School was considered on 11.2.2011, by the State Selection Board. For the vacancy in the petitioner’s school, the respondent Kalyani Choudhury was empanelled in the 1st position, whereas the petitioner was placed in the 2nd position. On the basis of the recommendation made, the respondent No.5 was promoted, under the impugned order dated 30.1.2012 (Annexure-VII). The petitioner however contends that she being the senior teacher in the graduate scale, the recommendation of the respondent No.5 by the State Selection Board, is unjustified. 9. In order to understand the criteria of appointment of Asstt. Headmistress in the High School, consideration of the following provisions of the Provincialisation Rules would be necessary: “14. The Recruitment to the post of Vice-Principal /Head Master /Head Mistress/Superintendent/Asstt. Head Master / Asstt. Head Mistress of High/HS/HS & MP School- (1) ………………….. (2) …………………… (3) The post of Assistant Head Master / Asstt. Head Mistress / Assistant Superintendent shall be filled up by promotion from the school-wise seniority list of Assistant Teachers on recommendation of the State Selection Board. The selection shall be based upon satisfactory Annual Confidential Report for last 3 years and seniority of service in graduate scale of pay with a minimum 7 years of teaching experience. In case of amalgamated High School the Head Master/Head Mistress of the M.E. School is eligible for selection as Assistant Head Master / Asstt. The selection shall be based upon satisfactory Annual Confidential Report for last 3 years and seniority of service in graduate scale of pay with a minimum 7 years of teaching experience. In case of amalgamated High School the Head Master/Head Mistress of the M.E. School is eligible for selection as Assistant Head Master / Asstt. Head Mistress subject to condition that- (i) the incumbent should have at least 5 years of teaching experience in M.E. School if he/she is the founder Head Master/Head Mistress of the M.E. School; (ii) the incumbent should have at least 10 years of teaching experience in M.E. School if he/she is not the founder Head Master/Head Mistress of the M.E. School. The seniority shall be determined as per provision of Rule 24(2). ………………………… …………………………. 15. Procedure of selection- (1) ………………………. (2) The Director of Secondary Education shall call particulars in the prescribed format of the eligible candidates/teachers for filling up of the vacancies through promotion. The Member-Secretary shall hold the process of the applications and submit them to the State Selection Board. (3) The State Selection Board shall hold interview category wise and prepare the select list school-wise. There shall be three names against each vacancy in existence in each school to be recommended by the State Selection Board. (4) The recommended select list shall be submitted for approval to the Government. After Government approval, the Director of Secondary Education shall issue promotion order in order of merit from the approved select list fulfilling the reservation quotas as per existing Government rules and provisions. ………………………… 24. Seniority.- ……………………….. (4) The seniority of the Graduate Classical Teacher of Hindi, Sanskrit, Arabic, Persian, Assamese, Bodo, etc. having degree qualification from any recognized University shall be counted at par with other general Graduate Teachers for consideration of promotion to the next higher post: Provided that the seniority of such Classical Teachers in the Graduate posts shall be counted from the date of his acquiring the degree qualification from recognized University. ………………….”. 10. As can be seen from above, promotion is to be made on the basis of school seniority and only those with seven years teaching experience in graduate scale, are eligible for consideration. ………………….”. 10. As can be seen from above, promotion is to be made on the basis of school seniority and only those with seven years teaching experience in graduate scale, are eligible for consideration. While both contenders in the present case, entered service on ad-hoc basis, the respondent No.5 was appointed earlier on 3.3.1994, as a Hindi Teacher, whereas the petitioner was appointed on 30.1.1996, as a teacher in the intermediate scale. However, when a graduate teacher’s post became available in the school, the petitioner was upgraded to graduate scale on 16.9.1998, as per the Govt. circular dated 30.12.1993 and since then, the petitioner is serving in the graduate scale w.e.f. 16.9.1998. 11. At one stage question was raised on how the petitioner was regularized in the graduate teacher’s vacancy before the respondent No.5, under the communication dated 5.12.1998. But the issue was buried immediately by the withdrawal communication on 27.1.1999, whereby, the respondent was ordered to be adjusted in a Hindi teacher’s post. Therefore, notwithstanding the temporary shadow on the petitioner’s status for a few weeks, she continued to serve as a graduate teacher of the school, since the date of her regularization on 16.9.1998. 12. A couple of years thereafter, when the Hindi Teacher vacancy became available in the school on 31.3.2000 through retirement, the ad-hoc Hindi teacher Kalyani Choudhury (respondent No.5), was regularized in the regular vacancy, w.e.f. 1.4.2000. 13. To consider promotion of Assistant Teachers, the school wise seniority list should first be prepared and it appears that initially, an attempt was made to exclude the writ petitioner from the process. But at the last moment, her case was placed before the State Selection Board along with the other aspirants, from the school. 14. The counter affidavit filed by the DSE on 25.7.2013, reflects that the State Selection Board preferred the respondent No.5 only because, the petitioner entered service as an intermediate teacher on 30.1.1996. But what was overlooked in the process is the crucial fact that the petitioner was upgraded as a graduate Assistant Teacher on 16.9.1998, in a regular vacancy. Therefore it would be illogical to treat the petitioner as an intermediate scale teacher at the time of selection, on account of her original entry in service on 30.1.1996 in the intermediate scale. 15. Therefore it would be illogical to treat the petitioner as an intermediate scale teacher at the time of selection, on account of her original entry in service on 30.1.1996 in the intermediate scale. 15. The criteria of promotion does not envisage merit based selection, since satisfactory annual confidential reports is enough and sub-rule (3) of Rule 14 of the Provincialisation Rules makes it obvious that seniority in service, would largely influence the promotion. 16. The proposed priority adjustment of the private respondent ahead of the petitioner, through the communication of 5.12.1998 never fructified, on account of the withdrawal order issued on 27.1.1999 (Annexure-IV), which directed that Kalyani Choudhury (respondent No.5) be adjusted against a Hindi Teacher’s vacancy. Thus the regularization of the petitioner on 16.9.1998, in the graduate teacher’s vacancy, was left undisturbed. 17. Interestingly, the WP(C) No.660/1999, was filed by the respondent Kalyani Choudhury to challenge the withdrawal communication dated 27.1.1999 (Annexure-IV), but the litigant herself decided to not to pursue that challenge and on that basis, the High Court on 15.7.2002 ordered for closure of that case. 18. The up-gradation of the petitioner as a graduate Assistant Teacher on 16.9.1998 is being questioned here but what is important is that the petitioner’s regularization in the graduate scale was never disturbed and more importantly, the WP(C) No.660/1999, whereby the respondent No.5 challenged the withdrawal communication dated 27.1.1999 (Annexure-IV), came to be disposed of without adjudication, because of the submission made by the challenger Kalyani Choudhury (respondent No.5). 19. The promotion given to the respondent No.5, reflects that the petitioner’s seniority as a graduate Assistant Teacher, w.e.f. 16.9.1998 was ignored. Moreover, the implication of the subsequent regularization of the private respondent in a Hindi Teacher’s post w.e.f. 1.4.2000, was also overlooked, by the State Selection Board. 20. The right of consideration to promotion is available to those who are serving regularly as Assistant Teacher/Hindi Teacher. In the absence of any material to suggest that the Annual Confidential Reports of the petitioner for the concerned period, was unsatisfactory, the preference of the respondent by the State Selection Board, will amount to discrimination. The service status of the rival claimants was not correctly taken into account and improper consideration for such omission, has led to the unfair decision. Therefore I am of the considered view that the Selection Board should re-decide the promotion, to undo the injustice done, during the earlier process. The service status of the rival claimants was not correctly taken into account and improper consideration for such omission, has led to the unfair decision. Therefore I am of the considered view that the Selection Board should re-decide the promotion, to undo the injustice done, during the earlier process. 21. Following the above, the impugned order dated 30.1.2012 (Annexure-VII), is set aside and quashed. The State Selection Board is accordingly directed to make fresh consideration of the eligible incumbents, as on the date of selection, held in the year 2011. The ordered exercise should be carried out expeditiously and be concluded preferably, within three months from today. The current arrangement in the post of Assistant Headmistress of the school may temporarily continue, until the fresh exercise is carried out. It is ordered accordingly. 22. With the above order, the case stands allowed, in the manner indicated. No cost.