Common question of law and facts having arisen in both these writ petitions, the same are being taken up together for consideration and are being disposed of by this common judgment.

2. The facts necessary to unravel the controversy that has arisen between the 96 and the respondent No. 4 in C.R. No. 516/97 whereas one P.K. Deb Adhikari is the petitioner in C.R. No. 561/97 and the respondent No. 5 in C.R. No. 6241/96.

3. The bone of contention between the parties to the present proceeding is regarding inter-se seniority in the cadre of Assistant Teacher in a particular High School of the State of Assam. The question of seniority of the incumbents admittedly is dealt with by the provisions of Assam Secondary Education (Provincialised) Service Rules, 1982 particularly Rule 13 thereof. Aggrieved by the determination of seniority made by the Director of Secondary Education, Assam, the respondent No. 4 in C.R. No. 516/97, D.P. Tiwari instituted a writ proceeding before this Court which was registered as C.R. No. 2567/93. This Court by judgment and order dated 7.12.95, on the grounds and reasons mentioned, expressed its declination to enter into the question raised by the writ petitioner in the said proceeding and instead thought it appropriate to send the matter back to the Director of Secondary Education, Assam for a de-novo consideration of the question of inter-se seniority between the present parties. Pursuant to the said order passed by this Court in C.R. No. 2567/93, the Director of Secondary Education by order dated 7.6.96 determined the seniority of Sri D.P. Tiwari over Sri P.K. Deb Adhikary. authority by the impugned order dated 5.12.96 reversed the findings arrived at by the Director of Secondary Education, Assam and came to the conclusion that it is Sri Deb Adhikary who is senior to Sri Tiwari. The correctness of the aforesaid order passed by the learned Commissioner and Secretary to the Govt. of Assam, Education Department is the subject matter of challenge in C.R. No. 6241/96 instituted by the aforesaid D.P. Tiwari. In the parallel proceeding instituted by Sri Adhikary the correctness of the order passed by the Director of Secondary Education dated 7.6.96 is under challenge. To resolve the dispute that has arisen in both the writ petitions, an examination of the correctness of the contentions raised in C.R. No. 6241/ 96 by Sri Tiwari would be sufficient.

4. Mr A.K. Goswami, learned counsel appearing for the writ petitioner in C.R. No. 6241/96 has advanced a two fold submission in support of the challenge made in the writ petition. According to Mr Goswami, under the provisions of the 1982 Rules no appeal before the Commissioner & Secretary to the Govt. of Assam, Education Department was competent in law and, therefore the impugned order dated 5.12.96 passed by the said authority is wholly without jurisdiction requiring appropriate interference of this Court. Alternately, it has been argued that even assuming such an appeal to be competent in law, the merits the order passed by the Commissioner & Secy, to the Govt. of Assam, Education Department suffer from errors which are ex-facie apparent from the records and the said order stands vitiated by consideration of irrelevant factors in determining the inter-se seniority between the parties to the present proceeding.

5. Elaborating his argument Mr Goswami, learned counsel for the petitioner has submitted that under Rule 13 of 1982 Rules, the Commissioner & Secretary to the Govt. of Assam is competent to adjudicate the question of inter-se seniority of incumbents only on a reference made by the Director of Secondary Education. In the instant case, no such dispute relating to seniority having been referred to the learned Commissioner & Secy, by the Director, the exercise of powers by the Commissioner is wholly unauthorised in law. Mr Goswami has further argued that a right of appeal cannot be inferred or implied from the provisions of any statute. Such a right must