Rule 24(2)(ii) of the Assam Secondary Education (Provincialised) Service Rules, 2003 is ultra vires the provisions of Articles 14 and 16 of the Constitution.

Ranjan Gogoi, J.

1. Rule 24(2)(ii) of the Assam Secondary Education (Provincialised) Service Rules, 2003, having been adjudged to be constitutionally impermissible by a learned Single Judge of this Court the Writ Appeals under consideration have been instituted. A Government Letter dated 3.8.90, which has been understood to have laid down essentially the same prescription as contained in Rule 24(2)(ii) is the subject matter of the Writ Petitions that were heard along with the appeals in question. The views expressed by a Division Bench of this Court in W.A. No. 476, 560 and 562 of 2002 with regard to the purport and effect of the Government Letter dated 3.8.90 having been highly debated and contrary as well as mutually inconsistent orders having been recorded by several Single Benches, a reference of the question of validity of Rule 24(2)(ii) to a larger Bench was considered necessary. This is how the Writ Appeals and the Writ Petitions came to be referred to this expanded Bench.

2. The leading case where arguments have been offered is W.A. No. 128/2005. In the said Appeal the order dated 14.12.2004 passed by the learned Single Judge in, inter alia, WP (C) No. 7125/2003 has been assailed. Learned Counsels for both sides have agreed that the aforesaid order of the learned Single Judge in so far as WP (C) No. 7125/2003 is concerned, may be set aside and the writ petition i.e. WP (C) No. 7125/2003 be re-heard. The reasons for the aforesaid stand taken need not detain the Court. As already indicated, the core issue arising in all the cases is one relating to the constitutional validity of Rule 24(2)(ii) of the Assam Secondary Education (Provincialised) Service Rules, 2003. We, therefore, proceed to adjudicate the said issue in the light of the facts of WP (C) No. 7125/2003 which facts would be largely common to the other cases under consideration.

3. The writ Petitioners are Classical Teachers who possess a graduate degree. Classical Teachers for the purposes of the present cases are those who had Hindi, Sanskrit, Arabic, Persian, Assamese and Boro as one of the subjects while acquiring the degree qualification. They teach the aforesaid languages in the schools in which they are/were appointed. The expression "Classical Teacher" is not defined in any of the statutory provisions that will require consideration by the Court. It may also be put on record, at this stage, that there are other species of Classical Teachers who, however, are not graduates. The cases of such Classical Teachers are not the subject matter of any of the writ appeals or writ petitions covered by the present order.

4. With a view to provide for provincialisation of secondary education covered by the deficit scheme prevailing in the State of Assam, the Assam Secondary Education (Provincialisation) Act, 1977 (hereinafter referred to as 'the Provincialisation Act, 1977') was enacted which came into force w.e.f 1.10.1977. Section 2(v) and (vi) which defines the expression 'employee' and 'existing employee', being relevant for the purposes of the present cases, are extracted below:

(v) "employee" means a person in the employment of a school working against a regularly sanctioned post and whose appointment has been approved by the School authority wherever such approval was necessary;

(vi) "existing employee" means an employee who is, on the appointed day, in the regular pay roll, employee against regular sanction and whose appointment has been approved by the school authority.

5. Section 3 of the Act provides that on and from an appointed date i.e. the date on which the Act came into force, all employees of all secondary schools in the State of Assam are deemed to have become employees of the State Government with effect from the date of their appointments. Section 3(3) provides that services of all employees shall be encadred in appropriate cadres in accordance with the Rules framed by the State Government.

6. At the time of provincialisation effected under the pr