Page No.# 1/20 GAHC010016952015 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3937/2015 MD. ABDUL JALIL S/O- MD. WAZUDDIN MUNCHI, ASSTT. TEACHER ARABIC, F.A. AHMED HIGH SCHOOL, NAITOR, SONAPUR, KAMRUP, ASSAM. VERSUS THE STATE OF ASSAM AND 4 ORS REP. BY COMMISSIONER OF SECONDARY EDUCATION, SECONDARY DEPTT., DISPUR, GUWAHATI, KAMRUP- 6. 2:THE DIRECTOR OF SECONDARY EDUCATION KAHILIPARA GUWAHATI KAMRUP- 19. 3:THE INSPECTOR OF SCHOOLS KAMRUP DIST. CIRCLE. 4:THE TREASURY OFFICER KAMRUP. 5:FAKURUDDIN ALI AHMED HIGH SCHOOL P.O.- NAGARBERA DIST.- KAMRUP ASSAM REP. BY THE HEAD MASTER Advocate for the Petitioner :-Mr. M. Dutta. Advocate for the respondents :-Mr. N.J. Khataniar, For (R-1 to3) :- Mr. A. Chaliha, (R-5) Page No.# 2/20 Date of Hearing :- 27.03.2025. Date of Judgment & Order :- 22.04.2025 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN J JUDGEMENT & ORDER (CAV) Heard Mr. M. Dutta, learned counsel for the petitioner and Mr. N.J. Khataniar, learned standing counsel for respondent No.1 to 3 and Mr. A. Chaliha, for respondent No.5. None appears for respondent No.4. 2. In this petition, under Article 226 of the Constitution of India, the petitioner namely, Abdul Jalil, has prayed for issuing direction to the respondent authorities to grant him graduate scale of pay from the date of amalgamation of M.E. Madrassa, Naitor Sonapur with F.A. Ahmed High School, Naitor Sonapur and also to set aside the order dated 16.12.2014 passed by the Secretary to the Government of Assam, Education (Secondary) Department and to set aside the O.M. No. ASE 58/2010/53, dated 18.11.2011. 3. The back ground facts leading to filing of the present writ petition is briefly stated as under:- “The petitioner was initially appointed as Assistant Teacher (Arabic) in the Andabhanga M.E. Madrassa in Barpeta District on 12.03.1977, and the said Madrassa was at that point of time was Page No.# 3/20 venture institution. It was provincialised with the service of the petitioner. Thereafter, the petitioner was transferred to C.A.I. M.E. Madrassa in the year 1997 and thereafter he was transferred to Ghilabari M.E. Madrassa. Thereafter, he was again transferred from Ghilabari M.E. Madrassa to the Naitor, Sonapur M.E. Madrassa by the District Education Officer, Kamrup on 30.03.2001. Accordingly, he joined on 30.03.2001. Despite having good academic record the petitioner has completed Master Degree in Arabic in the year 1988. Then in the years 27.11.2006, by an order of Director of Elementary Education, Assam, the Naitor, Sonapur M.E. Madrassa was amalgamated with the Fakaruddin Ali Ahmed High School, Nagarbera (respondent No. 5) and pursuant to such an amalgamation, the petitioner and other teachers of Sonapur M.E. Madrassa was absorbed in the amalgamated High School and an amalgamated seniority list was prepared. Thereafter, on 26.12.2006, the Inspector of Schools, Kamrup, vide Order bearing memo No. PI/Amal/2005/01/1209-07 issued to the Head Master of respondent No.5 school, directed that the qualified staffs of the M.E. Madrassa serving against duly sanctioned post stood absorbed in the High School without prejudice to the up gradation of scale of pay of teachers working in intermediate scale of pay. The amalgamated seniority list was prepared wherein the name of the petitioner was figured at Sl. No. 10 as Assistant Teacher with qualification M.A. In the amalgamated High School one Jabed Ali was working as Asstt. Teacher (Arabic) and he was placed at Sl.No.5 of the seniority list. Said Jabed Ali retired on 30.03.2011 Page No.# 4/20 on attaining superannuation. Then the said post fell vacant. Thereafter, the petitioner wrote a letter to the Inspector of Schools, Kamrup district circle for up gradation of his scale of pay from intermediate scale to graduate scale. But, the letter was rejected on the ground of having no provision. Thereafter, the petitioner had preferred one Writ Petition being WP(C) No. 1642/2014 which was disposed of vide order dated 06.08.2014 directing the respondent No.1 to consider the case of the petitioner and pass appropriate order. Thereafter, vide order dated 16.12.2014, the Secretary to the Government of Assam, Education (Secondary) Department, rejected the claim of the petitioner observing that the up- gradation of teachers in intermediate scale to the post of graduate scale has been discontinued by O.M. No. ASE 58/2010/53, dated 18.11.2011. The pleaded case of the petitioner is that he is entitled to up- gradation of his scale of pay in terms of the conditions of amalgamation. Further pleaded case of the petitioner is that Section 3 of the Assam secondary education (Provincialisation) Service Rules, 2003 despite the class and cadres in provincialisation of high and higher secondary schools and such cadres include post of graduate teachers in class II senior category and graduate teachers including classical teachers of Sanskrit, Arabic etc, having bachelor’s degree. The proviso to Section 3 stipulates that all existing posts of teachers would stand upgraded as graduate teacher including language teachers such as Page No.# 5/20 Arabic teachers from the date such posts becomes vacant as a result of retirement or otherwise. Further pleaded case of the petitioner is that for all practical purposes the petitioner had been serving and rendering service as an Arabic teacher in the amalgamated high school as he has been teaching in higher class since the retirement of the earlier incumbent. It is also the pleaded case of the petitioner that a similarly situated person had also filed one writ petition being WP(C) No. 6510/2014 wherein, the Director Secondary Education had taken a plea that the intermediate teachers, who are graduates, would be entitled to the benefit of graduate scale and not the post with effect from the date of amalgamation under FR 22(1) (a) in terms of Notification No. (B) S. 888/93/19-A dated 07.02.1995, and that this Court vide order dated 24.04.2015, had directed the respondent authorities to grant graduate scale of pay to the petitioner therein. Further pleaded case of the petitioner is that the O.M. dated 18.11.2011,cannot take away the benefits of upgraded scale of pay which was one of the terms of the amalgamation and such Notification cannot be given retrospective effect to take away the benefits that had accrued in terms of the condition of amalgamation and that the petitioner is entitled to up gradation of the scale of pay with effect from 2006 when the school was amalgamated. It is also the case of the petitioner that his legal and Page No.# 6/20 fundamental right has been violated on account of denial of graduate scale of pay.” 4. Being aggrieved, the petitioner has approached this Court praying for the relief, as aforesaid. 5. The respondent No.2 had filed its affidavit-in opposition. In the said affidavit a stand has been taken that on amalgamation of the school of the petitioner with Fakaruddin Ali Ahmed High School, vide order dated 27.11.2006, the petitioner came under the jurisdiction of Secondary Education Department. It is also stated that the Government in the Secondary Education Department, vide notification dated 30.12.1993 upgraded the existing post of Asstt. Teachers in intermediate Scale of pay of Rs. 1185- 2395/ per month with graduate incumbent for provincialised High/Higher Secondary School to the post of Assistant Teacher in graduate scale of pay of Rs. 1375 - 3375 per month from the date of issue of order. Said notification was applicable in respect of those existing intermediate teachers working in the secondary school at that time. Since the petitioner was working under Elementary Education and his service came under Secondary Education Department after amalgamation of his school with Fakaruddin Ali Ahmed High School, in the year 2006 therefore, the claim of the petitioner for allowing graduate scale of pay on the strength of notification dated 30.12.1993 and subsequent notification dated 07.02.1995, cannot be considered. It is also stated that in fact notification dated 07.02.1995 is not a notification granting graduate scale of pay to the Assistant Teachers of intermediate scale of pay having graduate qualification, but, it was a notification clarifying that fixation of pay in the upgraded graduate scale of pay would be regulated under the provision of FR (22) (1) (a) (2) of Fundamental Page No.# 7/20 Rules and subsidiary Rules. 6. Mr. Dutta, learned counsel for the petitioner submits that though the respondent No.2 had filed affidavit in opposition, yet the statement and averment made in para No. 14 and 15 of the petition remained uncontroverted. Mr. Dutta, further submits that the petitioner was serving as Assistant Teacher in Arabic and his school was amalgamated in the year 2006 with Fakaruddin Ali Ahmed High School and his case is covered by the proviso to Rule 3 of the Assam Secondary Education (Provincialisation) Rules 2003, which stipulates that all existing posts of teachers would stand upgraded as graduate teachers including language teachers such as Arabic teachers from the date of such posts become vacant as a result of retirement or otherwise. Mr. Dutta also submits that on account of retirement of one Assistant Teacher, namely, Jabed Ali one post is lying vacant and in his place the petitioner may be upgraded and that he has already been serving in higher classes. Mr. Dutta also submits that the impugned order does not deals with proviso to Rule 3 and the case of the petitioner has to be considered under the old Rules not under the new Act which is prospective in nature and cannot be applied retrospectively. In support of his submission, Mr. Dutta has referred to a decision of Hon’ble Supreme Court in Rajesh Mitra alia Rajesh Kumar Mitra and Another vs. Karnani Properties Ltd. reported in 2024 SCC OnLine SC 2607. Mr. Dutta also, referring to decision of this Court in WP(C) No. 6510/2014, submits that in the said petition a co-ordinate Bench of this Court has directed the respondent authority to grant relief to similarly situated person in the said petition. Under such circumstances, Mr. Dutta has contended to allow the petition. Mr. Dutta has also referred to a decision of Hon’ble Supreme Court in Selva Raj vs. Lt. Page No.# 8/20 Governor of Island, Port Blair and Others, reported in AIR 1999 SC 838. 7. On the other hand, Mr. Khataniar, learned standing counsel for the respondent Nos. 1, 2 & 3 submits that the petitioner is not entitled to the benefit as claimed for in as much as Rule 3 of the Assam Secondary Education (Provincialisation) Rules, 2003 has already been repealed and new Act and Rules came into force in the meantime. Mr. Khataniar also submits that up- gradation of scale is not a matter of right and the post in which the petitioner was working has to be up-graded. Mr. Khataniar has also referred to a decision of a Co-ordinate Bench of this Court in WP(C) No. 6773/2005 (Gauri Prabha Mahanta and Ors. vs. the State of Assam and Ors.) and submits that the petitioner is not entitled to the benefit. Therefore, Mr. Khataniar has contended to dismiss the petition. 8. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the relevant provision of law, i.e. proviso to Rule 3 of the Assam Secondary Education (Provincialisation) Rules 2003, and also perused the impugned order dated 16.12.2014. Also I have gone through the O.M. No. ASE 58/2010/53 dated 18.11.2011, and the decisions referred by learned Advocates of both sides. 9. That, a careful perusal of the pleadings of the parties and the documents placed on record by both the parties following undisputed facts emerges:- (i) The petitioner was initially appointed as Assistant Teacher (Arabic) in the Anda bhanga M.E. Madrassa in Barpeta district Page No.# 9/20 on 12.03.1977, (ii) Said Madrassa at that point of time was venture institution. It was provincialised with the service of the petitioner. (iii) Thereafter, the petitioner was transferred to C.A.I. M.E. Madrassa in the year 1997; (iv) Thereafter, he was transferred to Ghilabari M.E. Madrassa. (v) Thereafter, he was again transferred from Ghilabari M.E. Madrassa to the Nayator, Sonapur M.E. Madrassa by the District Education Officer, Kamrup on 30.03.2001, and he joined on 30.03.2001. (vi) The petitioner has completed Master Degree in Arabic in the year 1988, and he has good academic record; (vii) Thereafter, on 27.11.2006, by an order of Director of Elementary Education, Assam, the Nayator, Sonapur M.E. Madrassa was amalgamated with the Fakuruddin Ali Ahmed High School, Nagarbera (respondent No. 5); (viii) Pursuant to such an amalgamation, the petitioner and other teachers of Sonapur M.E. Madrassa were absorbed in the amalgamated high school and an amalgamated seniority list was prepared and the name of the petitioner figured in Sl. No. 10. (ix) Thereafter, on 26.12.2006, the Inspector of Schools, Kamrup, vide Order bearing memo No. PI/Amal/2005/01/1209- 07 issued to the Head Master of respondent No.5 school, directing him that the qualified staffs of the M.E. Madrassa, serving against duly sanctioned post, stood absorbed in the high school without prejudice to the up gradation of scale of pay of Page No.# 10/20 teachers working in intermediate scale of pay. (x) In the amalgamated High School one Jabed Ali was working as Asstt. Teacher (Arabic) and he was placed at Sl.No.5 of the seniority list and he retired on 30.03.2011, on attaining superannuation and the post fell vacant. (xi) Thereafter, the petitioner filed a petition before the Inspector of Schools, Kamrup for up gradation of his scale of pay from intermediate scale to graduate scale; (xii) But, the letter was rejected on the ground of having no provision; (xiii) The petitioner has been teaching in higher classes since the retirement of the earlier incumbent; (xiv) The petitioner then preferred WP(C) No. 1642/2014 which was disposed of vide order dated 06.08.2014 directing the respondent No.1 to consider the case of the petitioner and pass appropriate order; 10. It is to be noted here that in WP(C) No. 1642/2014 which was disposed of vide order dated 06.08.2014, it was directed that the respondents, more particularly respondent No.1 to deal with the case of the petitioner in reference to the aforesaid plea and then pass appropriate order as expeditiously as possible, within three months. 11. For proper appreciation of the arguments, so advanced at the bar, this Court deemed it appropriate to reproduce the finding of the impugned order dated 16.12.2014, which read as under:- Page No.# 11/20 Findings:- “On perusal of records in hand, it transpires that Md. Abdul Jalil, herein referred to as petitioner, was appointed as Arabic Teacher in the intermediate scale of pay in the year 1977 in Anda Bhanga M.E. Madrassa. He was transferred to C.A.I. M.E. Madrassa and thereafter to Ghilabari M.E. Madrassa. Thereafter in 2001, he was again transferred to Naitor M.E. Madassa. Sonapur. It also reveals that Naitor M.E. Madrassa was amalgamated with Fakaruddin Ali Ahmed High School, Naitor in the year 2006 and the post of the petitioner was absorbed in F.A. Ahmed High School. Consequent upon the amalgamation of Naitor M.E. Madrassa with F.A. Ahmed High School, Naitor, the petitioner has claimed for upgradation of his post from Intermediate scale of pay to Graduate scale of paybefore the Inspector of Schools, Kamrup. but failed to get any positive result. Hence he preferred a Writ Petition (C) before the Hon’ble High Court seeking justice. The Hon’ble High Court in its order dated 06.08.2014 passed in WP(C) No. 1642/2014 has directed the Government respondents to pass necessary order in accordance with the prevailing rules and guidelines in this regard. The proposal for upgradation of teachers working in intermediate scale of pay to graduate scale of pay having degree qualification to the post of Graduate Teacher in Higher Secondary School/High School has since been discontinued by the Government by an OM issued vide No. ASE 58/2010/53, dated 18.11.2011 (copy enclosed). Order. After careful examination of all aspects, it is hereby decided that the claim of the Page No.# 12/20 petitioner for up-gradation of his post from intermediate scale of pay to graduate scale of pay cannot be considered. The order dated 06.08.2014 passed by the High Court in WP(C) No. 1642/2014 (Md. Abdul Jalil vs. State of Assam & Others) is disposed of accordingly. Sd/- R.C. Jain, IAS, Secretary to the Government of Assam Secondary Education Department. 12. A bare perusal of the impugned order, dated 16.12.2014, indicates that the prayer of the petitioner was rejected on the ground that the proposal for upgradation of teachers working in intermediate scale of pay to graduate scale of pay having degree qualification to the post of Graduate Teacher in Higher Secondary School/High School has since been discontinued by the Government by an OM issued vide No. ASE 58/2010/53, dated 18.11.2011. 13. That a perusal of the OM No. ASE 58/2010/53, dated 18.11.2011 (Annexure-A) of the affidavit-in-opposition, indicates that the post of Graduate teachers in Higher Secondary/High School are filled up by the method of direct recruitment only under provision of Rule 8 of the Assam Secondary Education (Provincialisation) Service Rules, 2003. There is no such provision for up-gradation of teachers appointed in lower cadre having degree qualification to the post of Graduate teachers. Rule 7(2) (b) (ii) of the said Rules gives a preference to a serving graduate teacher having a P.G. Degree for the post of P.G. Teacher in that School. But, Page No.# 13/20 there is no such preference in case of intermediate teachers having a graduate qualification. If there is any preference, it shall be available only when there is a clear vacancy to the post and there cannot be any automatic up-gradation into a higher cadre to which an incumbent is not appointed. It is also stated that after careful consideration of all other aspects, the Government has decided that henceforth, no proposal for up- gradation of teachers having degree qualification and appointed in the intermediate scale of pay be submitted for consideration by the Government. Similarly proposal for up-gradation of Graduate Teacher to P.G. teacher should not be submitted to Government. 14. That perusal of the Rule 3 of the Assam Secondary Education (Provincialisation) Service Rules 2003, deals with classes and cadres of teachers. Sub-section 1 provides that the service in provincialised school shall consist of the teaching and non-teaching staff. The teaching staff shall consist of following classes and cadres each of those constituting a distinct and separate cadre as on the commencement of these rules, namely :- (a) Class II (Senior) :- It includes the cadres of (i) Principal; (ii) Vice-Principal, (iii) Post Graduate Teacher; (iv) Head master/ Superintendent; (b) Class II (Junior) :- It includes the cadre of (i) Assistant Head Master/Assistant Superintendent; Page No.# 14/20 (ii) (a) Graduate Teacher (b) Hindi Teacher, having Bachelor degree from any recognized university (c) Classical teacher (Sanskrit/Arabic/Language teacher) having bachelor degree from any recognized university, (iii) Demonstrator; (iv) Senior Classical teacher without bachelor degree; (v) Music teacher; (vi) Junior teacher/Junior Classical teacher/ Junior Hindi Teacher; (vii) Craft teacher; Provided that there shall be no fresh recruitment to the cadres of Junior teachers, Junior Classical Teacher, Junior Hindi Teacher, Senior Classical Teacher, and all such existing posts shall stand upgraded as Graduate Teacher or Hindi Teacher having Bachalor Degree from any recognized University or Classical Teacher (Sanskrit/Arabic/Assamese Language Teacher, as the case may be ) from the date such posts becomes vacant either as a result of retirement of existing incumbent or otherwise. Sub-Section 2 deals with non-teaching staffs which is not relevant to decide the dispute in the case in hand. 15. That, having perused the aforesaid proviso, in the light of the facts and circumstances of the case in hand, the submission of Mr. Dutta, the learned counsel for the petitioner, appears to have substance, inasmuch as, after amalgamation of the Madrassa of the petitioner with the respondent No.5 School, the service of the petitioner stands absorbed in the said school and an Page No.# 15/20 amalgamated seniority list was prepared wherein indisputably the name of the petitioner figured in Sl.No.10, and his educational qualification is reflected as M.A. in Arabic. 16. It is also not in dispute that in the amalgamated High School one Jabed Ali was working as Asstt. Teacher (Arabic) and he was placed at Sl.No.5 of the seniority list and he retired on 30.03.2011, on attaining superannuation. The post remained vacant thereafter and though the petitioner had filed a petition before the Inspector of Schools, Kamrup for up gradation of his scale of pay from intermediate scale to graduate scale, the same failed to evoke favorable response from him. 17. After the WP(C) No.1642/2014 was disposed of vide order dated 06.08.2014, the petitioner also failed to get favourable consideration in the hand of respondent No.1. In the said order what the respondent No.1 of that petition had considered was the O.M. dated 18.11.2011, issued vide Memo No. ASE 58/2010/53. As discussed herein above, the said O.M. provides that the post of Graduate teachers in Higher Secondary/High School are filled up by the method of direct recruitment only under provision of Rule 8 of the Assam Secondary Education (Provincialisation) Service Rules 2003. There is no such provision for up-gradation of teachers appointed in lower cadre having degree qualification to the post of Graduate teachers. It is also stated that the Rule 7(2) (b) (ii) of the said Rules gives a preference to a serving graduate teacher having a P.G. Degree for the post of P.G. Teacher in that School. It is also stated therein that there is no such preference in case of intermediate teachers having a graduate qualification. And if there is any preference, it shall be available only when there is a clear vacancy to the post and there cannot be any automatic up-gradation Page No.# 16/20 into a higher cadre to which an incumbent is not appointed. Then it is stated that the Government has decided that henceforth, no proposal for up-gradation of teachers having degree qualification and appointed in the intermediate scale of pay be submitted for consideration by the Government. 18. But, it appears that what eschewed consideration of the respondent No. 1 in issuing the impugned order dated 16.12.2014, and the authority had failed to read the proviso to Rule 3 of the Assam Secondary Education (Provincialisation) Service Rules 2003. The said proviso also eschewed consideration of the authority issuing the O.M. dated 18.11.2011. And more interestingly the affidavit in opposition is also silent in this regard and the statement and averment made in the para No. 14 and 15 of the petition remained uncontroverted. That being so, the doctrine of non-traverse can be profitably applied herein this case, which provides that unchallenged averment in pleadings are deemed admitted. 19. That being so, there is substance in the submission of Mr. Dutta, the learned counsel for the petitioner that the O.M. dated 18.11.2011, is not applicable in the case of the petitioner and on such count the impugned order, dated 16.12.2014, is also illegal and arbitrary. 20. At the cost of repetition also it is being reiterated that as per the proviso to Rule 3, there shall be no fresh recruitment to the cadres of Junior teachers, Junior Classical Teacher, Junior Hindi Teacher, Senior Classical Teacher, and all such existing posts shall stand upgraded as Graduate Teacher or Hindi Teacher having Bachalor Degree from any recognized University or Classical Teacher (Sanskrit/Arabic/Assamese Language Teacher, as the case may be ) from the Page No.# 17/20 date such posts becomes vacant either as a result of retirement of existing incumbent or otherwise. 21. In the case in hand, what is not disputed is that in the amalgamated F.A. Ahmed High School, one Jabed Ali was working as Asstt. Teacher (Arabic). In the amalgamated seniority list of teachers of said school, the name of Jabed Ali was placed at Sl.No.5 of the seniority list. Said Jabed Ali retired on 30.03.2011, on attaining superannuation. As per proviso to Rule 3, there shall be no fresh recruitment to the cadres of Junior Teachers, Junior Classical Teacher, Junior Hindi Teacher, and Senior Classical Teacher. In the vacant post of Jabed Ali the present petitioner, who had indisputably, acquired M.A. Degree in Arabic has to be upgraded as Graduate Teacher, from the date, such posts becomes vacant. 22. It is well settled proposition of law that a provision in statutory Rules cannot be superseded by an Office Memorandum. An Office Memorandum is an administrative instruction that can clarify or supplement statutory rules but cannot override or contradict them. Statutory rules being enacted through legislative processes hold a higher legal standing then executive instruction. Therefore, the provision in the Rule will always prevail. Reference in this context can be made to a decision of Hon’ble Supreme Court in Sant Ram Sharma vs. State of Rajasthan, reported in (1968) 1 SCR 111 and also in Sukhdev Singh vs. Bhagatram Sardar Singh Raghubanshi, reported in (1975) 1 SCC 421. 23. I have carefully gone through the decision in Salva Raj (supra) referred by Mr. Dutta, learned counsel for the petitioner and I find that the ratio laid down therein also strengthened his submission, wherein it was held that on Page No.# 18/20 the principle of quantum merit the respondent authorities should have paid the appellant therein as per emolument available in the aforesaid scale of pay during the time he actually worked on the said post though in an officiating capacity and not as a regular appointee. It is to be noted here that in the case in hand, the petitioner has been teaching Arabic in higher classes after retirement of Jabed Ali, on 30.03.2011, on which the impugned O.M. was not even issued. 24. I have also gone through the decision of this Court in WP(C) No. 5723/2005 (Prabhat Mahanta and Ors. vs. The State of Assam and Ors.) referred by Mr. Khataniar, learned standing counsel for the respondent authorities and I find that in the said decision, there was no occasion for the Court to consider the proviso to Rule 3 of the Assam Secondary Education (Provincialisation) Service Rules 2003. Therefore, the said decision would not come into assistance of Mr. Khataniar. 25. Though a stand has been taken in the affidavit-in-opposition that Government in the Secondary Education Department, vide notification dated 30.12.1993 upgraded the existing post of Asstt. Teachers in intermediate Scale of pay of Rs. 1185- 2395/- per month with graduate incumbent for provincialised High/Higher Secondary School to the post of Assistant Teacher in graduate scale of pay of Rs. 1375 – 3375/- per month from the date of issue of order and said notification was applicable in respect of those existing intermediate teachers working in the secondary school at that time and as the petitioner was working under Elementary Education and his service came under Secondary Education Department after amalgamation of his school with Fakaruddin Ali Ahmed High School, in the year 2006 and therefore, he is not Page No.# 19/20 entitled to graduate scale of pay on the strength of notification dated 30.12.1993 and subsequent notification dated 07.02.1995, yet, said contention is a misconceived one inasmuch as, the case of the petitioner lies in proviso to Rule 3 of the Assam Secondary Education (Provincialisation) Service Rules 2003. Similarly, the provision of FR (22) (1) (a) (2) also would not be applicable in the case of the petitioner as he was not appointed to a new post. FR (22) (1) (a) (2) pertains to pay fixation when a government employee is appointed to a new post that doesn’t involve higher duties or responsibilities. 26. It is fact that the Assam Secondary Education (Provincialisation) Service Rules 2003 was replaced by new rules i.e. the Assam Secondary Education (Provincialised School) Service Rules, 2018. Clause 35 of the said rules provides so. But, the said rules operate from the date of their enforcement i.e. prospectively. And that being so, said rules cannot take away the heritable right of the present petitioner, whose right accrued on 30.03.2011, the date on which Jabed Ali, the Arabic Teacher retired on superannuation, in the respondent No.5 High School. Mr. Dutta, the learned counsel for the petitioner has rightly pointed this out during argument and the decision referred by him in Rajesh Mitra (supra) also supported his contention. 27. It is also to be noted here that a co-ordinate Bench of this Court in WP(C) No. 6510/2014, vide order dated 24.04.2015, has directed the respondent authority to grant relief in the said petition and the present petitioner is also similarly situated with the petitioner in that case. 28. Under the given facts and circumstances, discussed herein above, this Court is of the considered opinion that the impugned order dated 16th Page No.# 20/20 December, 2014 failed to withstand legal scrutiny and as such liable to be set aside. And accordingly, the same stands set aside. 29. Therefore, by a mandamus of this Court, the respondent No.2 herein, is directed to grant the graduate scale of pay to the petitioner from the date of retirement of Jabed Ali on 30.03.2011, till the date of retirement of the present petitioner. 30. And this exercise has to be carried out within a period of two months from the date of receipt of certified copy of this order. The petitioner is directed to obtain a certified copy of this judgment and order and to place the same before the respondent No.2 within a period of one week from today. 31. In terms of above, this WP(C) stands disposed of. The parties have to bear their own cost. JUDGE Comparing Assistant