1. By means of this writ petition, the petitioner who at the time of filing of the writ petition was working as Assistant Teacher in M.E. School has prayed for setting aside and quashing of the orders of appointments/ promotion of the private respondents as Headmaster in the respective Schools and for a direction to the official-respondents to appoint/promote the petitioner as Headmaster of M.E. School.

2. The facts as narrated in the writ petition are that the petitioner was appointed as an Assistant Teacher in S.K. Dev M.E. School in the district of Hailakandi way back in 1973 (10.8.1973) and till the date of filing the writ petition he was serving as such. According to the petitioner he was the seniormost qualified Assistant Teacher in the School after one Shri Bomkash Choudhury who retired from service w. e. f. 28.2.97, on attaining the age of superannuation. Although one Shri A.U. Laskar who also joined as Assistant Teacher along with the petitioner in the same year, senior to the petitioner, but was not qualified to be appointed as Headmaster he being only a matriculate.

3. After the retirement of said Shri Bomkash Choudhury, the Headmaster of the School w.e.f. 28.2.1997, the petitioner was expecting his appointment/promotion as Headmaster. But it was said Shri A.U. Laskar who was only H.S.L.C. passed with Bisharad in Hindi was allowed to act as Headmaster in-charge of the School. The representation submitted by the petitioner yielded no result. On the other hand, by an order dated 23.7.1997 one Shri Nazrul Haque Mina (respondent No. 5) who was already serving as Headmaster of another School, i.e., Hazi Aziruddin M.E. School was transferred to the School of the petitioner. The official respondents also appointed one Shri Kamala Kanta Das, (respondent No. 6) with the qualification of HSLC and normal training who joined his service as Assistant Teacher on 1.12.1974 in another School was appointed as Headmaster of another School, i.e., Killarbak M.E. School although he was junior to the petitioner.

4. Said Shri Kamala Kanta Das (respondent No. 6) was transferred to aforesaid, Killarbak M.E. School from his earlier School, Jamira M.E. School and in his place one Shri Rahamat Ali Borbhuyan (respondent No. 8) was appointed as Headmaster in-charge of Jamira M.E. School. According to the petitioner, apart from said Shri Kamala Kanta Das, Shri Rahamat Ali Borbhuyan (respondent No. 8) was also junior to the petitioner and was under qualified being only HSLC passed with normal training. The posts of Headmaster in both the Schools, i.e., S.K. Deb M.E. School and Jamira M.E. School had fallen vacant on the same date on retirement of the respective incumbents on 28.2.1997. The official respondents also appointed/promoted one Shri Abdul Rajak Borbhuyan (respondent No. 7), also junior to the petitioner as Headmaster of Hazi Aziruddin M.E. School upon transfer of aforesaid Shri Nazrul Haque Mina (respondent No. 5) to S.K. Deb M.E. School.

5. In the aforesaid background, it is the grievance of the petitioner that although he was senior to the private respondents, his case for such appointment/promotion either as Headmaster in-charge or as regular Headmaster was not considered by the official respondents and his representations made from time to time were not attended to. It is the further case of the petitioner that the post of Headmaster in M.E. School is a promotional post and appointment to the post has to be made on the basis of seniority-cum-efficiency upon recommendation of the Sub Divisional Selection Committee constituted by the Director of Elementary Education. The provisions of the Assam Elementary Education (Provincialisation Service and Conduct Rules), 1980 have been alleged to be violated by the petitioner. The petitioner has given certain instances of such alleged violation while projecting his case of discrimination in the matter of appointment/promotion as Headmaster of M.E. School.

6. During the pendency of the writ petition, the petitioner retired from service sometime in 2004. The petitioner by filing an additional affidavit and an affidavit-in-reply to the affidavit-in-opposition filed by the official respondents has highlighted certain more facts with documentary evidence. The petitioner has brought on record that the aforementioned juniors, some of whom were initially allowed to hold the current charge of the post of Headmaster in addition to their own duties as Assistant Teacher were subsequently allowed to officiate as Headmaster in the time of scale of pay attached to the post of Headmaster. In this connection, the petitioner in his additional affidavit has annexed the copies of the orders dated 6.10.1997 and 27.5.1998 by which the respondent No. 6 Shri Kamala Kanta Das who was transferred from Jamira M.E. School to Killarbak M.E. School was allowed to hold the current charge of the post of Headmaster and lateron was given officiating promotion as Headmaster in the admissible time scale of pay respectively. The petitioner has also brought on record the order dated 29.9.1997 by which Shri Rahamat AH Borbhuyan who was initially allowed to hold the charge of the post of Headmaster was allowed to officiate as Headmaster with attached time scale of pay for the post of Headmaster. The petitioner has also annexed to other documents (Annexure-H series to the additional affidavit) to show that such benefit of officiating promotion with the time scale of pay was extended to some others who had earlier worked as in charge Headmasters only.

7. With the filing of the affidavit-in-opposition by the official respondents narrating their version of the factual aspect of the matter, the petitioner in his affidavit-in-reply has confined his grievance only in respect of the respondent Nos. 6 and 8 against whom it is his definite case that they were illegally made in-charge Headmaster and eventually provided with officiating promotion as Headmaster ignoring and/or in supercession of the case of the petitioner in violation of the rules.

8. In the affidavit-in-opposition filed on behalf of the official-respondents, they have justified their action in respect of promotion of the private respondents as Headmaster. As regards the in-charge ship of the post of Headmaster given to said Shri A.U. Laskar, who according to the petitioner although was senior to him in the School, was under qualified, was entrusted with the task, he being senior to the petitioner and senior-most in the School. Such an arrangement was made only as a stop gap measure. As regards the case of the respondent No. 5, Shri Nazrul Haque Mina, the respondents have stated in their affidavit that he being a regular Headmaster of another School, there was no illegality in transferring him in the same capacity to the School of the petitioner.

9. As regards the ultimate claim of the petitioner over the respondent Nos. 6 and 8, it is the stand of the respondents in their affidavit that the said two respondents who were initially made in-charge Headmaster of their respective School were eventually provided with officiating promotion in the time scale of pay, they being the senior most teachers in their respective Schools. As regards the respondent No. 7, the stand of the respondents is that he being a regular Headmaster, there was no infirmity in transferring him to another School as Headmaster. The respondents admit that there was no gradation list of Assistant Teachers of the M.E. School in the district at the relevant point of time. According to them, by the time the gradation list was prepared and published, the petitioner had already retired from service on attaining the age of superannuation and thus his name did not figure in the gradation list. However, nothing has been highlighted as to what would have been the position of the petitioner in the gradation list.

10. Thus, in a nutshell, the case of the respondents is that the respondent Nos. 6 and 8 who were not in the School of the petitioner were the senior most Assistant Teachers of their respective Schools and they were made in-charge Headmaster on the basis or their seniority position and were eventually provided with officiating promotion in the time scale of pay. They have denied that there was any supersession of the petitioner. According to them, the officiating promotion provided to the said two respondents were not regular promotion and thus there was no question of supersession of the petitioner by them. However, as regards the time scale of pay provided to the said two respondents, the official respondents in their affidavit have stated that since they were officiating as Headmaster, they were given the pay scale of Headmaster.

11. I have heard Mr. R.P. Sarma, learned senior counsel for the petitioner assisted by Mr. B. Chakraborty. I have also heard Mr. V.M. Thomas, learned Standing Counsel, Education Department. Inspite of service of notice on the private respondents none appeared for the private respondents.

12. Mr. Sarma, learned senior counsel appearing for the petitioner highlighting the above factual aspect of the matter submitted that the petitioner who has already retired from service on attaining the age of superannuation has been shabbily treated by the respondents in the matter of promotion to the post of Headmaster. Placing reliance on the Notification dated 30.8.1986, issued by the Government of Assam in the Education (Personnel) Department in exercise of the powers conferred under Section 27(1) of the Assam Elementary Education (Provincialisation) Act 1974 and Section 3(3) of the Assam Secondary Education (Provincialisation) Act 1977 laying down the procedure for promotion to the post of Headmaster of M.E/M.E. Madrassa/M.V. and Senior Basic School, Mr. Sarma submitted that the petitioner was entitled to be considered for promotion at least at par with the respondent Nos. 6 and 8 and the same having not been done, it was a clear case of supersession in the matter of promotion. He also placed reliance of the decision of this Court as reported in 2000 (2) GLT 425 Mayanglambam Sarat Ch. Singh v. State of Manipur and Ors.

13. Countering the above argument advanced by Mr. Sarma, learned Counsel for the State-respondents submitted that the private respondents, i.e., respondents Nos. 6 and 8 having been promoted on the basis of their School seniority, there was no infirmity in the action of the official-respondents and that the petitioner cannot equate his case with those respondents. As regards the officiating promotion of the respondent Nos. 6 and 8, he submitted that the said promotions not being regular promotion, the petitioner cannot take the plea of his supersession by the said two respondents.

14. I have considered the submissions made by the learned Counsel for the parties and the materials available on records. During the course of hearing it was admitted by the learned State counsel, that the respondent Nos. 6 and 8 were junior to the petitioner so far as the date of joining of the service as Assistant Teachers in M.E. School is concerned. The said two respondents and the petitioner had worked in different School. It is true that if the seniority of these three Assistant Teachers is taken into consideration School wise, there cannot be any comparison among them, A comparison will come only when a district wise seniority covering all the Assistant Teachers of the M.E. School in the district are taken into consideration. It is in this context, the learned Counsel for the petitioner placed reliance on the aforementioned Notification dated 30.8.1986 the aforesaid Notification is reproduced below :

GOVERNMENT OF ASSAM EDUCATION (PERSONNEL) DEPARTMENT ORDERS BY THE GOVERNOR OF ASSAM NOTIFICATION Dated Dispur, the 30th August, 1986.

No. EPG. 1003/86/3 : In exercise of the powers conferred under Section 27(1) of the Assam Elementary Education (Provincialisation) Act, 1974 and Section 3(3) of the Assam Secondary Education (Provincialisation) Act, 1977, the Governor of Assam is pleased to frame the following procedures for promotion to the post of Headmasters of M.E./M.E. Madrassa/M.V. and Senior Basic Schools.

(1) The post of Headmaster of M.E/M.EM./H.V./Senior Basic Schools shall be promotional posts. Appointment to the posts shall be made on the basis of seniority-cum-efficiency on the recommendation of the District Level Selection Committee to be constituted by the Director of Elementary Education, Assam.

(2) The Committee shall prepare a Sub-Division-wise gradation list of teachers (Separately for M.E/M.E./M. V. and Senior Basic Schools) in order of seniority showing the date of appointment, educational qualification, year of passing of training, age on the date appointment, date of retirement, which should be communicated to all incumbents with copies to all the concerned authorities for information.

(3) Selection for the posts of Headmaster in such Middle Schools shall be made strictly on the basis of seniority-cum-efficiency.

(4) The teachers having less 10 years of continuous service shall not be considered for promotion.

(5) The teachers who have passed at least Matric/HSLC, Normal or have at least intermediate or its equivalent qualification or above and have successfully under gone necessary training as may be prescribed by the Department shall only be considered for promotion. However, the teachers who have completed minimum of 15 (fifteen) years of continuous service but no facilities have been provided to him/her for the prescribed training may also be considered for promotion provided there is nothing adverse against them.

(6) The Committee shall prepare a panel of selected teachers which shall remain valid for one year from the date of selection.

(7) In case of Hindi/Classical/Language teachers having required minimum educational qualification and training may also be considered for promotion.

These procedures will come into force with immediate effect.

15. As per the procedure for promotion as Headmaster laid down in the said Notification, such promotion has to be on the basis of seniority cum efficiency on the recommendation of the district level Selection Committee to be constituted by the Director of Elementary Education, Assam. The Committee is required to prepare a Sub-Division wise gradation list of teachers in order of seniority showing the date of appointment, educational qualification, year of passing of training, age on the date of appointment, the date of retirement etc. Such copy of the gradation list is required to be communicated to all the incumbents. Teachers having less then 10 years of continuous service are not eligible for such promotion. As regards the qualification, the teachers who have passed at least Matric/HSLC, normal or have at least intermediate or its equivalent qualification and have successfully undergone necessary training as may be prescribed by the department shall only be considered for promotion. The teachers who have completed minimum of 15 years of continuous service but no facilities have been provided to them for the prescribed training may also be considered for promotion provided there is nothing adverse against them. The penal of selected teachers prepared by the Committee remains valid for one year. The criteria for selection is seniority cum efficiency. The procedure so laid down in the said Notification came into effect with the date of the issuance of the Notification.

16. There is no dispute that at the time of providing in-charge ship and officiating promotions to the respondent Nos. 6 and 8, the aforesaid Notification dated 30.8.1986 was holding the field. However, no selection was held to consider the case of the Assistant Teachers in the M.E. Schools and thus naturally the petitioner did not get an opportunity to get his case considered for promotion. All the Schools in respect of which the impugned promotions, be it as in-charge or officiating were in respect of the same Sub Division in which the School of the petitioner falls. Thus, in the event of following the procedure laid down in the said Notification, the case of the petitioner would have come up for consideration along with the respondent Nos. 6 and 8. However, since no selection was conducted during the lifetime of the petitioner, he was deprived of his case for promotion.

17. It is true that it is only on the basis of School seniority an incumbent Assistant Teacher can be allowed to hold the current duty charge of the post of Headmaster. However, if such stop gap or temporary arrangement culminates into officiating promotion as in the case of the respondent Nos. 6 and 8, the question will necessarily arise as to whether the petitioner serving as Assistant Teacher in another School in the same Sub Division and senior to the respondent Nos. 6 and 8 was entitled to be considered for such officiating promotion. The respondents in their affidavit have simply justified their action of providing officiating promotions to the said two respondents on the basis of the interim arrangement made in their favour as in-charge Headmaster of the respective Schools on the basis of their School seniority. As regards the time scale of pay attached to the post of Headmaster and granted to the said two respondents, the plea of the respondents in the affidavit is that since they officiated in the post of Headmaster, they were entitled to receive the same.

18. From the above, it will be seen that the respondent Nos. 6 and 8 in the name of being in-charge Headmaster eventually got their promotion on officiating basis in the regular time scale of pay with the fixation benefits. Thus for all practical purposes both of them got regular promotions. Nothing could be brought on record by the State-respondents that their officiating promotion was only temporary or as a stopgap measure and that they have been reverted back to their original post from such officiating promotion. The private-respondents by not responding to this writ proceeding even after service of notices on them have also accepted this position. In absence of any rebuttal on the part of the respondents as regards the plea of the petitioner that the respondent Nos. 6 and 8 although were promoted on officiating basis got the regular pay scale of the post of Headmaster with fixation benefits, same has gone un-refuted.

19. From the above, it will be seen that the respondent Nos. 6 to 8 have been provided with the promotion benefits as Headmaster, although the expression used as regards their promotion as Headmaster was "officiating". For all practical purposes, the respondent Nos. 6 and 8 earned their promotions as Headmaster of M.E. Schools without routing their cases through the procedure laid down in the aforesaid Notification dated 30.8.1986. However, the official respondents on being confronted with the plea of the petitioner of violation of the procedure laid down in the said Notification have taken recourse to their defence of providing promotions to the said two respondents on the basis of their School seniority. There is no whisper in the aforesaid Notification to provide promotion on the basis of School seniority,

20. The requirement of the procedure is to conduct selection by the District Level Selection Committee is required to prepare a Sub Division wise gradation list of teachers. It is only on that basis, the selection on the touchtone of "seniority cum efficiency" is required to be conducted towards preparation of a panel. Needless to say that appointment/ promotions can only be made on the basis of the merit position in the panel and the policy of reservation. However, in the instant case, no selection was made during the incumbency of the petitioner and in the process the respondent Nos. 6 and 8 who were initially made in-charge Headmaster of their respective School were provided with officiating promotion which culminated to regular promotion for all practical purposes totally ignoring the case of the petitioner who was admittedly senior to them.

21. As per Clause VI of the Notification dated 30.8.1986 the panel prepared by the Selection Committee is to remain valid for one year from the date of selection. This necessarily means that in the normal course such selection is required to be conducted every year. It is true that in the Notification dated 30.8.1986 there is no indication of frequency of meeting of the Selection Committee, but the official respondents cannot shirk off their responsibility by not holding the selection for years together and benefiting few teachers on the basis of their School seniority. In the normal course a Selection Committee should be convened at regular annual intervals to draw panel which could be utilized for making promotions against the vacancies occurring during the course of a year. It was in that context, the Apex Court in the case of Union of India v. R. Banerjee having regard to the frequency of meeting of the D.P.C. in that case which was to be convened at regular annual intervals to draw panels, held that in other words the life of the panel is one year. In the instant case, the Notification itself provides that the life of the panel is for one year from the date of selection in terms of which normally the frequency of the selection should be one year.

22. A duty is caste on the official-respondents to hold selection at regular intervals. Had that course of action been taken, a lot of heart burning could have been avoided. In the instant case although the petitioner was senior to the respondent Nos. 6 and 8 in the Sub Division, but in view of the inaction of the official-respondents, his juniors i.e. respondent Nos. 6 and 8 scored a march over him way back in 1997 and the petitioner after filing of the writ petition in 1997 itself had to carry the heart burning without any redressal from the official-respondents and even now he finds himself pursuing the legal battle which he instituted in 1997. With the efflux of time and when the legal battle is still on, he has retired from service on attaining the age of superannuation.

23. The decision on which Mr. Sarma, learned Counsel for the petitioner placed reliance, i.e., Mayanglambam (supra) is somewhat similar to the case in hand. In that case, the petitioner and the respondent No. 3 were working as Inspector in "the Commerce and Industries Department, Government of Manipur. Although the respondent No. 3 was junior to the petitioner, was provided with ad-hoc promotion to the post of Superintendent. As per the procedure laid down, such promotions was to be made from the feeder cadre strictly on seniority cum fitness basis the court found that in the area of "fitness", the petitioner was consistently assessed as good. It was held that the respondent No. 3 could not have edge over the petitioner in the matter of promotion on the criteria of seniority cum- merit as a person is required to be promoted if he is senior in service and not found unfit.

24. In the case of Government of A.P. v. A.V. Gopala Rao as , the Apex Court on the basis of the statements made that pending finalisation of the seniority list, the in-charge arrangement was made to keep seniormost in the provisional list of the respective ' Division who were eligible for promotion to the post of Executive Engineer, as in-charge so as to avoid heart burning among the officers and that the arrangement was being worked out satisfactorily, observed that the Tribunal was not justified in upsetting the interim arrangement which had got a rational and reasonable basis to avoid administrative hardship or heart burning to the persons who claimed to the post of respective Executive Engineers, Superintendent Engineers and the Chief Engineers, as the case may be.

25. In the instant case, the official respondents made the interim arrangement not on the basis of Sub Division wise seniority, but only on the basis of School wise seniority and eventually the incumbents, i.e., respondent Nos. 6 and 8 were provided with officiating promotions as Headmaster which, for all practical purposes were as good as regular promotions. Thus, it is a clear case of supersession of the petitioner in the matter of promotion to the post of Headmaster. The respondents cannot disown their responsibility towards consideration of the case of the petitioner by not adhering to the rules of procedure for promotion over the years and by taking the plea that the-respondent Nos. 6 and 8 being the seniormost teachers of the respective Schools were made the in-charge Headmaster with eventual officiating promotion as such with all service benefits. It is not the case of the respondents that the petitioner was not efficient to hold the post of Headmaster. By not providing incharge ship and then officiating promotion to the senior most teachers of the Schools the respondents avoided their responsibility over the years to conduct selection as required under the said Notification dated 30.8.1986 which resulted in the kind of heart burning as emphasized in the aforesaid case of A.V. Gopala Rao.

26. There is another aspect of the matter. The respondent No. 6 Shri Kamala Kanta Das could earn the in-charges! lip of .the post of Headmaster and eventually officiating promotion by way of his transfer from his earlier School, Jamira M.E. School to Killarbak M.E. School wherein he became the seniormost teacher. Thus, had it been the petitioner to get the benefit of transfer he would have earned the benefit of a regular Headmaster firstly, by becoming the in-charge Headmaster of the School and then by way of getting the officiating promotion. In such a situation, I am constrained to hold that the petitioner was illegally deprived of consideration of his case for promotion. The respondent Nos. 6 and 8 who were admittedly juniors to the petitioner became the beneficials of the circumstances giving rise to heart burning of the petitioner.

27. As regards the plea of the petitioner that some of the incumbents were not eligible for promotion as Headmaster, I find that the same is not tenable. As per the provisions-clause 5 of Notification dated 30.8.1986 all the incumbents possessed the requisite qualification for promotion as Headmaster.

28. The question now arises for consideration is as to what benefit the petitioner should get more particularly in view of the fact that he has already retired from service on attaining the age of superannuation during the pendency of the writ petition. Under the facts and circumstances of the case, I am not inclined to interfere with the promotions of the respondent Nos. 6 and 8. However, at the same time he cannot be rendered remediless. The petitioner has also made a prayer in the writ petition for a direction to the respondents to promote him as Headmaster in anyone of the M.E. Schools within the Hailakandi Sub Division, he being the seniormost teacher.

29. It is in the above context, the well known principle of service jurisprudence comes into operation. It has come to be recognized in service jurisprudence as "NEXT BELOW RULE". In the case of Dr. Y.P. Gupta v. Union of India and Ors. , the Apex Court applying this test of "next below rule" provided that the petitioner in that case would be in the same scale as was given to his juniors. In the case of R.K. Sethi v. ONGC , the Apex Court observed that the "next below rule" in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering the case of the senior, then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted.

30. In the instant case, as has been discussed above, there is no denial of the fact that the petitioner was senior to the respondent Nos. 6 and 8. However, due to the apathy on the part of the official-respondents and their failure to discharge their duties and responsibilities as enjoined in the Notification dated 30.8.1986, the case of the petitioner has gone unattended, leading to heart burning on the part of the petitioner. It is regrettable that because of the inaction on the part of the official-respondents no regular appointment could be made in time and over the years which naturally created the imbalance and ultimately it was the petitioner and may be some other similarly placed who suffered. After having put in long years of service, it is the seniority and promotion which an employee looks forward to. He expects he is given due promotion in time. Non-promotion may be incidence of any service but in the instant case, the petitioner has been deprived of his promotion without any fault of his own, It is a sad state of affairs that the case of the petitioner was not considered for promotion till he retired from service. This malice which abysmally afflict any service which is so common in the Education Department in the State must be deprecated.

31. For the foregoing reasons, although in view of the special feature of the case, I am not inclined to interfere with the orders of promotion of the respondent Nos. 6 and 8 but I am inclined to grant the second prayer of the petitioner, i.e., to consider his case for promotion as Headmaster from the date when his said two juniors were so promoted. The case of the petitioner shall be considered by the official-respondents for providing him promotion as Headmaster applying the same yardstick as was applied to the respondents Nos. 6 and 8, from the same date when the first junior between the said two respondents was so promoted. It is made clear that upon such promotion of the petitioner, he will not be entitled to get any back wages, but his pay shall be notionally fixed in the pay scale of Headmaster of M.E. School as would have been admissible to him had he been promoted from the said date at par with his junior. This will entail him with enhanced pensionary benefits. Entire exercises in this regard shall be carried out by the respondents, within three (3) months from today.

32. The writ petition stands allowed to the extent indicated above leaving the parties to bear their own costs.

33. Before parting with the case records I feel it necessary to emphasise that the officers at the helm of the affairs of the Education Department are required to perform their duties in the matter of timely consideration of the case of promotion of the teachers to avoid heart burning. It has become common phenomenon to manage the affairs of key post of Headmaster, Principal etc. of the Schools with the seniormost teachers of the Schools making them in-charge of the post without going for any regular selection which naturally gives rise to frustration and heart burning among the other eligible senior teachers. It is expected that the officers in the helm of affairs in the Education Department will put their head together to remove this adhocism within a reasonable period, with a sense of belonging to the department.