Point of Law : Rule 14(2) prescribes promotion to the posts of Headmaster/Headmistress and Superintendent from the school-wise seniority list on recommendation by the State Selection Board and that the seniority will be from the date of receipt of Graduate Scale as per Rule 24(2).

JUDGMENT :

SOUMITRA SAIKIA, J.

1. The vires of the Rule 14(2) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 (hereinafter referred as “the Rules of 2003”) has been questioned by the petitioner in the present writ petition. The petitioner was initially appointed as a Graduate Teacher in C.S. Rawanapur Higher Secondary School, Majuli by an order dated 12.10.1988 issued by the Inspector of Schools, Jorhat District Circle. By order dated 16.06.1994 issued by the Director of Secondary Education, Assam, she was transferred from C.S. Rawanapur Higher Secondary School, Majuli to Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat. She was also appointed as In-charge, Headmistress of the Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat vide the order dated 26.04.2016 issued by the Director of Secondary Education, Assam upon the post falling vacant due to the retirement of the previous incumbent. During the relevant period of time in response to an advertisement issued by the concerned authorities in the year 2015, she applied for and was selected as the Assistant Headmistress of the School. In terms of the said selection by order dated 05.08.2017, the petitioner was promoted to the post of Assistant Headmistress of Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat. Although she was appointed as the Assistant Headmistress and had joined in a substantive post, she continued to also discharge her services as the In-charge, Headmistress of the said school since 01.05.2016.

2. The Department of Secondary Education, Government of Assam advertised the post of Headmaster along with other posts lying vacant including those which are likely to fall vacant by 31.12.2017. In response to the said advertisement, the petitioner as well as respondent No. 5 applied for the post of Headmistress of Sarojini Devi Ucchal Balika Bidyalaya, Chengeligaon, Jorhat. In the selection pursuant to the said advertisement, respondent No. 5 was selected for the post of Headmistress in Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat. Being aggrieved, the present writ petition has been filed challenging the validity of Rule 14(2) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 as well as praying for consequential order for setting aside the impugned selection of the respondent No. 5 and also for setting aside the order dated 09.12.2019 issued by the Department of Secondary Education, Assam promoting the respondent No. 5 as the Headmistress of Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat in place of the writ petitioner.

3. The learned counsel for the petitioner submits that under the Rules of 2003, the post of Headmaster is included in the cadre of Class-II (Senior) and the post of Assistant Headmaster is included in the cadre Class-II (Junior) under the Rules. The post of Graduate Teacher is also included in the cadre of Class-II (Junior). The learned counsel for the petitioner submits that the provisions for recruitment to the post of Headmaster/ Assistant Headmaster interalia is prescribed under Rule 14 of the Rules of 2003. He strenuously submits that although under Rule 14(2), it is prescribed that the post of Headmaster shall be filled upon by promotion from school wise seniority list on the recommendation of the State Selection Board, Assam and the selection of the incumbent shall be based upon seniority and satisfactory ACR for the three (3) consecutive years, but it is also provided that the seniority shall be determined from the date of receiving the Graduate Scale as per Rule 24(2). The learned counsel for the petitioner submits that it is this provision for deciding the seniority on the basis of receiving Graduate Scale which is opposed to the scheme of the Rules and more particularly the class and cadre specified under the Rules. As such to the extent the Rule provides for deciding the seniority on the basis of receipt of Graduate Scale of Pay as per Rule 24(2),