JUDGMENT : Heard Mr. M. Chanda, learned counsel for the petitioner. Also heard Mr. P.J. Saikia, learned counsel for the respondent Nos. 4 and 5 as well as Mr. H. Barua, learned counsel for the respondent No.6 and Mr. N. Sarma, learned standing counsel for the Secondary Education Department. 2. An advertisement was issued by the Secretary of Sabitri Bharali High School inviting applications for one post of Assistant Teacher having the qualification of BSC Royal, one post for BSC (Bio) and one post having the qualification of BA. Both the petitioner and the respondent No.6 had participated in the said selection process. The petitioner as well as the respondent No.6 were issued call letters by the authorities by referring their application to be an application for the post of science teacher and both the call letters were of the same date. 3. By an order dated 25.07.1994 both the petitioner as well as the respondent No.6 were appointed. Although the order of appointment indicates that the petitioner is appointed as a science teacher and the respondent No.6 is appointed as an Assistant Teacher, but both of them having been appointed pursuant to the same advertisement and against the two available post of science teacher one being BSC (Royal) and the other BSC(Bio), it has to be construed that the appointment of the petitioner was also as a science teacher. Consequently, both the petitioner as well as the respondent No.6 have the same date of appointment as well as the date of joining. 4. When the situation had arisen for provincialising the services of the teachers of the concerned school, the authorities had provincialised the service of another teacher namely Santosh Bharali as one of the science teacher on the ground that the said teacher was senior to both the petitioner as well as the respondent No.6. Consequently, considering the number of posts available for provincialisation as per the Schedule to Assam Venture Educational Institution (Provincialisaton of Services) Act, 2011 (in short Act of 2011) as only one post remain in the category of science teacher, the respondent authorities by the order dated 22.09.2014 provided that the services of the respondent No.6 stood provincialised against the other post available for graduate teacher science by recording his date of joining as 08.08.1994. 5. 5. It is stated by the writ petitioner that he also joined service on 08.08.1994 and therefore, the dates of joining of both the petitioner as well as the respondent No.6 were same. In the circumstance, Mr. M. Chanda, learned counsel for the petitioner by relying upon the provisions of Rule 24(5) of the Assam Secondary Education (Provincialisation) of Service Rules, 2003 contends that the petitioner having an earlier date of birth is to be construed to be senior to the respondent No.6. It is the further contention of the petitioner that as the Provincialisation Act of 2011 provides that a provincialisation be effected in order of merit of the respective candidates, without there being any further consideration as regards the subject combination, therefore, it is the petitioner who ought to have been provincialised. 6. In the aforesaid circumstance, the present writ petition has been preferred for interfering with the order of provincialisation made in favour of the respondent No.6 on the ground that the petitioner is senior to the respondent No.6 and therefore under the Act 2011 it is he who ought to have been provincialised. 7. Mr. P.J. Phukan, learned counsel for the respondent Nos. 4 and 5 being the authorities of the Managing Committee of the concerned school relies upon an office memorandum dated 07.05.2014 of the Additional Chief Secretary to the Govt. of Assam in the Secondary Education Department to substantiate that depending upon the subject combination of the science teacher, i.e. a teacher having mathematics as a combination, a precedence would be available over a science teacher having some other combination and such precedence would be irrespective of their seniority. According to the respondent Nos. 4 and 5, the respondent No.6 having the subject combination which includes mathematics, is therefore, entitled to a precedence over the petitioner who does not have a subject combination having mathematics. Consequently, it is the contention of Mr. P.J. Phukan, learned counsel that the order of provincialisation dated 26.11.2013 is justified and legally valid. 8. Mr. H. Barua, learned counsel for the respondent No.6 also adopts the submission made by Mr. P.J. Phukan and he also by relying upon the office memorandum submits that the respondent No.6 having the subject combination which includes mathematics is entitled to preference over the writ petitioner, although the writ petitioner may otherwise be senior. Mr. 8. Mr. H. Barua, learned counsel for the respondent No.6 also adopts the submission made by Mr. P.J. Phukan and he also by relying upon the office memorandum submits that the respondent No.6 having the subject combination which includes mathematics is entitled to preference over the writ petitioner, although the writ petitioner may otherwise be senior. Mr. P.J. Phukan, learned counsel also relies upon Rule 4(j) of the Regulation for Recognition of High School and High Madrassa 1998 of SEBA (in short Regulation for Recognition of SEBA) which provides that the teaching staff of a school would have to be such that all the major subjects of the science combination are available. By relying upon the said provision, Mr. Phukan submits that in the event the petitioner is provincialised, there would be no teacher in the school who would be there to teach the mathematics subject and therefore, any provincialisation in favour of the petitioner would be in conflict with the provision of Rule 4(J) of the Recognition Rules. 9. Mr. M. Chanda, learned counsel for the petitioner on the other hand relies upon the pronouncement of this Court rendered in its judgment and order dated 31.08.2016 in WP(C) 4053/2013, wherein, it has been held that for the purpose of provincialisation of an Assistant Teacher (Science), the basis would be seniority and not the subject combination. Mr. Phukan, learned counsel per contra further contends that the said judgment dated 31.08.2016 is per incurium of the office memorandum dated 07.05.2014 and therefore, the same would not have a binding effect. Mr. P.J. Phukan, learned counsel contends that the judgment and order dated 31.08.2016 is also per incurium of the provisions of Regulation 4(j) and from the point of view also, the said judgment would not have a binding effect. In other words by relying upon the principle of per incurium, Mr. Phukan, learned counsel submits that the provision of the office memorandum would prevail and therefore, a teacher having the favourable subject combination of mathematics would have precedence over another teacher who although otherwise senior, but does not have the combination of mathematics. 10. Mr. P.J. Phukan, learned counsel also relies upon the judgment of the Division Bench dated 05.05.2016 in WA No.290/2014. As regards the issue of per incurium being raised by Mr. Phukan, the Court perused the judgment and order dated 31.08.2016 passed in WP(C) 4053/2013. 10. Mr. P.J. Phukan, learned counsel also relies upon the judgment of the Division Bench dated 05.05.2016 in WA No.290/2014. As regards the issue of per incurium being raised by Mr. Phukan, the Court perused the judgment and order dated 31.08.2016 passed in WP(C) 4053/2013. In the said order, the Division Bench judgment and order dated 05.05.2016 in 290/2014 is also taken into consideration. In other words, the learned Single Judge had followed the Division Bench judgment and had arrived at a conclusion that for the purpose of provincialisation of an Assistant Teacher (Science), the basis would be seniority and not the subject combination. Also when the order of the Division Bench is perused, it is noticeable that the provisions of Rule 4(j) of the Regulation for Recognition of SEBA was also taken into consideration. 11. From the said point, therefore, it cannot be said that the judgment and order dated 31.08.2016 in WP(C) 4053/2013 is per incurium of the provisions of Regulation 4((j) of the Regulation for Recognition of SEBA. But as regards the other contention that it is per incurium of the office memorandum dated 07.05.2014, we also take note of that in the judgment and order dated 31.08.2016, the Court had deliberated and adjudicated upon the interpretation of the provision of Section 4 of the Act of 2011 and had arrived at a conclusion that for the purpose of provincialisation of an Assistant Teacher (Science), the basis would be seniority and not the subject combination. We also further take note of that the office memorandum dated 07.05.2014 is not in the nature of a clarification or interpretation of the provision of Section 4 of the Act 2011. The office memorandum of 07.05.2014 is infact a provision of its own providing that a science teacher having mathematics as a combination gets precedence over science teachers of other combinations who may otherwise be senior. We also further take note of that the office memorandum dated 07.05.2014 also provides that Assam Secondary Education (Provincialised) Service Rules, 2003 requires amendment to the aforesaid effect. 12. The last line providing for the Rules of 2003 requiring amendment appears to be incorrect depiction as the issue involves is as regards the provision of the Act of 2011 and not the Rule 2003. 13. 12. The last line providing for the Rules of 2003 requiring amendment appears to be incorrect depiction as the issue involves is as regards the provision of the Act of 2011 and not the Rule 2003. 13. In any view of the matter, the said provision makes it explicitly clear that the provision of the office memorandum is contrary to the statutory provision and the memorandum itself makes a suggestion that the statutory provision requires amendment. From the said point of view, non consideration of the provision of the office memorandum dated 07.05.2014 in the judgment and order dated 31.08.2016 cannot be said to be per incurium of the said office memorandum. When the provision of the office memorandum itself is in conflict with the statutory provision, its acceptability itself would be in doubt and therefore, such an office memorandum cannot be made the basis to arrive at a conclusion that non-consideration thereof would render the judgment per incurium. 14. In view of the above, we are unable to accept the contention of the respondent Nos. 4 and 5 that the judgment and order dated 31.08.2016 in WP(C) 4053/2013 would be per incurium judgment which would take away its binding effect. 15. In view of the above, the judgment and order dated 31.08.2016 in WP(C) 4053/2013 would hold its force and the provision thereof that for the purpose of provincialislatlion of Assistant Teacher Science the basis would be seniority and not the subject combination would also have to be followed. In the event, the said proposition is followed, the petitioner is senior to the respondent No.6 in the manner as indicated above. It being so, the Court is of the view that the order of provincialistion provincialising the service of the respondent No.6 would have to be declared to be contrary to the requirement of Section 4 of the Act of 2011. Having declared so, it is directed that the Director of Secondary Education, Assam would pass necessary order thereto by taking into consideration that the petitioner is senior to the respondent No.6 and being senior, the provision of Section 4 of the Act of 2011 would be applicable in favour of the petitioner. In doing so, the Director shall follow necessary procedure under the law as required. 16. In doing so, the Director shall follow necessary procedure under the law as required. 16. While dealing with the respondent No.6, it is further provided that in the event, the provincialisation of the respondent No.6 is withdrawn, the benefits that had already been accrued to him shall not be recalled and further the case of the respondent No.6 be again considered under the provision of Section 13(6) of the Act of 2017. 17. Writ petition is allowed to the above extent. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the certified copy of the order.