JUDGEMENT AND ORDER : Heard Mr. B. Chakraborty, the learned counsel for the petitioner. The respondent Nos.1 & 2 are represented by Mr. B. Kaushik, the learned standing counsel for the Department of Higher Education. The Nirmal Haloi College, Barpeta (hereinafter referred to as ‘the College’) and their Governing Body (respondent Nos.3 & 4), are represented by the learned counsel Mr. S.K. Das. The learned lawyer Mr. D.K. Sarma appears for the respondent No.5, who is the contesting litigant in the case. 2. This is an inter se seniority dispute between the petitioner and Nirmal Ch. Saikia (respondent No.5), in respect of their service in the Nirmal Haloi College, Barpeta. Earlier the Director of Higher Education (DHE), Assam issued the order of 1.1.2003, whereby, Nirmal Ch. Saikia (respondent No.5) was declared to be the senior most Lecturer of the college and accordingly, his functioning as the Vice Principal, was approved by the DHE. Under the impugned speaking order dated 27.8.2010 (Annexure-13), the DHE rejected the petitioner’s claim for seniority and upheld the earlier order of 1.1.2003. 3. The two contenders joined as Lecturer at the venture stage and the college was brought under the deficit system of grants in aid, w.e.f. 11.1.1996, under the DHE’s order of 2.5.1996. The following chart will indicate few relevant dates, for determining the seniority question:- Name of Lecturer Joining date at the venture college College brought under deficit GIA system Date of working against sanctioned/substantive post Date of receiving UGC scale of pay Confirmation in service w.e.f. Sr. Scale of Pay w.e.f. Selection Gr. Scale of Pay w.e.f. Associate Grade Professor (1) Dr. Prabodh Ch. Goswami (WP) 08-03-1988 11.1.1996 11-01-1996 11-01-1996 6.9.1999 13.1.00 13.1.05 13.1.08 (2) Sri Nirmal Ch. Saikia (Resp 5) 12-09-1987 11-01-1996 11.1.1996 as per order dated 28.8.12 14.1.2000 24.11.02 24.11.07 Due on 24.11.10 4. The petitioner secured first division marks in MA and satisfied the prevalent UGC norms of 52.5%, when he entered service on 8.3.1998. However, the respondent No.5 joined service on 12.9.1987 with only 52% marks in his MA examination and thus, he was an under-qualified teacher. To improve his prospects, the respondent re-appeared in his MA examination and could marginally better his marks from 52% to 53.8%. However, the respondent No.5 joined service on 12.9.1987 with only 52% marks in his MA examination and thus, he was an under-qualified teacher. To improve his prospects, the respondent re-appeared in his MA examination and could marginally better his marks from 52% to 53.8%. But by then, the appointment norms were raised to 55% under the UGC’s letter dated 28th October, 1991 and the revised norms were intimated on 15.2.1994, by the UGC to the Assam authorities. 5. At that stage, the Assam Government took note that many under-qualified teachers without UGC norms, are serving in the venture colleges, where affiliation for degree classes was being issued. Considering the undesirability of continuance of under-qualified teachers in colleges being brought under the Government’s the Deficit System of Grant-in-Aid, hereinafter referred to as “the Deficit System”, the Education Department issued direction on 17.8.1993, to replace the under-qualified with those, who satisfy the UGC criterion. A specific direction was issued to the petitioner’s college on 7.4.1994 by the DHE, to urgently replace the under-qualified lecturers. 6. Following the above direction, the College Executive Committee met on 2.7.1994 and resolved to discharge the lecturers, who do not possess the requisite UGC norms (55%). A second resolution was taken on the same day, to however continue the under-qualified teachers as part-time lecturers. Thus the service status of the respondent No.5, was altered from lecturer to that of part-time lecturer, under the College Management’s resolution dated 2.7.1994. 7. The college was taken over by the Government under the Deficit System and all the serving lecturers with UGC norms, were approved under the DHE’s letter dated 2.5.1996. In the appended list of posts in different subjects, some were shown to be vacant and it was clarified that vacancy is shown either because of actual vacancy or because, the incumbents holding the posts, do not possess the UGC norms. Most significantly, although the private respondent had joined service on 12.9.1987 and was the senior most in the political science department, his post was shown to be vacant, in the DHE’s notification of 2.5.1996 whereas, two junior appointees in the same department, were included in the list of teachers, approved by the Government. 8. The Executive Committee of the College next met on 5.9.1994 where around 13 resolutions were adopted. 8. The Executive Committee of the College next met on 5.9.1994 where around 13 resolutions were adopted. The minutes of the Managing Committee’s meeting was recorded in Assamese and in the cramped space, just above the President’s signature, a 14th resolution is inserted in an unnatural fashion, whereby, the first two resolution of the previous meeting, was purportedly cancelled. But the handwriting of the 14th resolution was in a different hand and it appears that this resolution to benefit the under-qualified incumbents, was inserted, at a later stage in a clandestine fashion. Commenting skeptically on the resolution No.14, the College Ex-President, in his letter dated 15.3.2003 opined that this was surreptitiously inserted with sinister design by some vested group. Thus genuineness of the resolution No.14, which directly benefited the under-qualified incumbents, was questioned by the concerned President. 9. Be that as it may, the private respondent continued as under-qualified lecturer but unlike the petitioner who was treated to be an approved lecturer w.e.f. 11.1.1996 with UGC scale of pay, the respondent Nirmal Saikia didn’t enjoy the regular status. But in relaxation of the norms, Govt. gave conditional approval for the under-qualified teachers to allow them fixed pay of Rs.2,000/- p.m. However it was stipulated in the DHE’s order of 13.2.1997 that, the fixed pay lecturers, must obtain Ph.D. or M.Phil degree, within 8 years or else, their service will not be retained. The drawal of senior/selection grade pay was however stopped until, the fixed pay incumbents, obtains the prescribed UGC qualification. 10. The private respondent secured the M.Phil degree on 24.11.1997 and w.e.f. that date (24.11.1997), the fixed pay incumbent, was allowed to draw the UGC scale of pay (Rs.2200-4000/-), under the DHE’s order dated 8.1.1999. The regularization of service of the private respondent with 10 others, was approved by the Government on 27.9.1999 on the presumption that the respondent No.5 purportedly satisfied the UGC norms, when he entered service on 12.9.1987. But the improved marks i.e. 53.8% was erroneously noted in the regularization order and the respondent’s original marks of 52%, relevant for service entry on 12.9.1987, was totally overlooked. 11. However, the implication of the college management’s resolution of 2.7.1994, for termination of the under-qualified lecturer and his re-appointment as a part-time lecturer, did not receive attention of the DHE and consequently, respondent No.5 is treated to be in uninterrupted service since 12.9.1987. 11. However, the implication of the college management’s resolution of 2.7.1994, for termination of the under-qualified lecturer and his re-appointment as a part-time lecturer, did not receive attention of the DHE and consequently, respondent No.5 is treated to be in uninterrupted service since 12.9.1987. When the college was provincialised on 2.5.1996, originally, the respondent No.5 was not brought under the deficit grants in aid scheme. In relaxation of norms, his retention on fixed pay was however approved w.e.f. 11.1.1996, under the DHE’s order dated 13.2.1997. The respondent No.5 obtained his M. Phil degree on 24.11.1997 and only thereafter, he satisfied the requirement stipulated for the retention of the fixed pay lecturer. Eventually, the respondent No.5 was placed at par with the petitioner, in so far as their respective service being taken over, under the grants in aid scheme. But the record shows that the petitioner was allowed to draw the regular UGC scale of pay w.e.f. 11.1.1996 but the respondent No.5 was allowed to draw the UGC scale of pay only from the date, when he acquired the M. Phil qualification i.e. on 24.11.1997. 12. It is significant that the service of the petitioner was confirmed w.e.f. 6.9.1999, whereas the confirmation of the service of the respondent No.5 was done only on 14.1.2000. Both at the stage of senior scale and selection grade scale of pay, the petitioner was ahead of the respondent No.5 and this priority position is also maintained in the Associate Professor grade, since the respondent No.5 secured the benefit on 24.11.2010, whereas, the petitioner got the Associate Professor Grade w.e.f. 13.1.2008. 13. Under the judgment rendered on 31.5.2010 (Annexure-12), in the WP(C) No.6742/2004, the Writ Court while remitting the inter se seniority dispute for consideration by the DHE, observed that the authority must consider the implications of the fact that the respondent No.5 received the regular scale, the confirmation and also the senior scale, at a later point of time, than the petitioner. The impact of DHE’s earlier communication of 2.5.1996 (Annexure-1), whereby, the college was brought under the deficit scheme, to the exclusion of the respondent No.5, whose post was shown to be vacant in the Department of Political Science, was also required to be considered by the DHE. The impact of DHE’s earlier communication of 2.5.1996 (Annexure-1), whereby, the college was brought under the deficit scheme, to the exclusion of the respondent No.5, whose post was shown to be vacant in the Department of Political Science, was also required to be considered by the DHE. But it is apparent from the impugned speaking order of 27.8.2010 (Annexure-13), that those significant factors, specified in the High Court’s judgment in the WP(C) No.6742/2004, were ignored by the DHE. Instead, only on the basis that the respondent No.5 was appointed on 12.9.1987, prior to the petitioner’s joining on 18.9.1987, the inter se seniority was declared in favour of the respondent No.5, by the Director. 14. According to Mr. B. Chakraborty, the learned counsel for the petitioner, the private respondent cannot claim seniority w.e.f. 12.9.1987 when he joined service in the college since the appointed lecturer was terminated by the college management on 2.7.1994 but was engaged thereafter as a Part-Time Lecturer. On the other hand, Mr. D.K. Sarmah, the learned counsel for the private respondent submits that right since 12.9.1987 the respondent No.5 has continued his service in the college without any break and therefore such uninterrupted service should account for inter se seniority determination, of the two rival litigants. 15. When the service is in the same status and without break, the declaration of seniority in favour of the longer serving lecturer, will perhaps be alright. But the question is whether the service of respondent No.5 suffered a break, on account of the college management’s discharge resolution of 2.7.1994 and the re-appointment of the under-qualified teacher as a part time lecturer, by the 2nd resolution adopted on 2.7.1994. In so far as the Managing Committee’s resolution of 5.9.1994, which purportedly cancels the termination resolution of 2.7.1994, the former GB President Mr. G.C. Sharma, under his letter dated 15.3.2003, expressed the view that the cancellation resolution was surreptitiously inserted in the minutes by some vested interest, with sinister design in the cramped space, just above the signature of the President. The likelihood of inter-polation in the College Executive Committee’s resolution of 5.9.1994, can also be seen from the College Principal’s communication dated 19.11.2003, in the context of the Appeal filed before the DHE, Assam. The likelihood of inter-polation in the College Executive Committee’s resolution of 5.9.1994, can also be seen from the College Principal’s communication dated 19.11.2003, in the context of the Appeal filed before the DHE, Assam. If the under-qualified lecturer was actually discharged by the College on 2.7.1994 and was reappointed again as a part-time lecturer, such continuation in a lesser post may not account for determination of seniority, on the basis of length of service. But this aspect was wholly ignored by the DHE, in the impugned speaking order dated 27.8.2010 (Annexure-13). Thus manifestation of an incorrect determination of seniority, is noticed in the case. 16. The above circumstances suggest that the determination of inter se seniority under the impugned order dated 27.8.2010 (Annexure-13) by the DHE was based entirely upon the continuation of service of the two incumbents, without examination of whether the status of the private respondent was changed from that of lecturer to part-time lecturer, under the College Management’s resolution of 2.7.1994. The fact that the under-qualified lecturer was discharged on 2.7.1994, is also overlooked by the authority. In fact, a perfunctory exercise is perceived since the Director failed to bear in mind the factors mentioned in paragraph 14 of the judgment dated 31.5.2010 (Annexure-12) in the WP(C) No. 6742/2004, whereby the DHE was asked to decide the inter se seniority, of the two litigants. 16. Having noticed the errors in the impugned order dated 27.8.2010 (Annexure-13), this court is of the considered opinion that the inter se seniority of the petitioner and the respondent No.5 must be re-determined. All the relevant factors as noted above must be considered and decision be given after affording hearing to all the parties, including the College Management. To facilitate the ordered exercise, the petitioner will furnish a copy of this order to the DHE. The College Authorities must produce in original, the College Executive Committee’s resolutions of 2.7.1994 and 5.9.1994, so that the DHE can consider the implication of those resolutions. As this case is pending since long, the ordered exercise be completed expeditiously and preferably within 3(three) months from today. The impugned speaking order dated 27.8.2010 (Annexure-13) will abide by the final decision of the DHE, in the ordered exercise. It is ordered accordingly. 17. A copy of this order be furnished to the departmental lawyer Mr. B. Kaushik, for onward communication.