Smt. Kamala Bhattacharjee vs The State of Tripura

S. Talapatra, J. - Being aggrieved by the judgment and order dated 15.06.2012 delivered in WP(C) No.470 of 2015 by the learned single judge the writ petitioner has preferred this intra-court appeal.

The facts not in dispute and relevant for appreciating the grounds urged in this appeal are being noted at the outset. The writ petitioner was appointed as the Post Graduate Teacher in Fatikroy Class-XII School w.e.f. 28.12.1979 pursuant to the offer of appointment under No. F.17/78-79/SECY-FHS/312 dated 11.12.1979 issued by the respondent No.7. The said school was privately managed school under Grant-in-Aid by the Government of Tripura. Subsequently on her selection as the Post Graduate Teacher in Harachandra Class-XII School, another privately managed school under Grant-in-Aid by the Government of Tripura, by the memorandum under No. HHS(6-K)/Adm/86/2489(2) dated 07.08.1986, the petitioner joined in the said school on 25.09.1986. Even though in the said memorandum dated 07.08.1986 there is no stipulation that the petitioner would be provided pay protection in view of her previous service in the Fatikroy Class-XII School but by the communication under No. HHS(6-K)/Adm/86/2573 dated 09.11.1986 the Administrator, Harachandra Class-XII School had communicated to the appellant, hereinafter referred to as the petitioner as under:

"In pursuance of Resolution No.10/86 dated 8.10.86 adopted by the undersigned, you are hereby appointed to the post of Assistant Teacher in English of Harachandra Class XII School, P.O. Manikbhandar, North Tripura as per terms and conditions laid down in the offer of appointment issued vide this school''s office reference No. HHS(6-K)/Adm/86/2489(2) dated 7.8.86 with effect from 25-9-1986 (forenoon) in the scale of pay of

Rs.600-35-950-40-990-45-1440/- plus admissible allowances on a monthly basic pay of Rs.740.00 as per L.P.C. issued from your previous employer."

[Emphasis added]

The petitioner having been released by her previous employer joined in Harachandra Class-XII School on 25.09.1986 by submitting the joining report with copy of the release order and other papers. The said release order under No. F.6(43)/79-80/SECY-FHS/150 dated 24.09.1986 issued by the Secretary, Fatikroy Class-XII School reads as under:

"Release order

Smt. Kamala Bhattacharya, B.A. (Hons in Eng.) asstt. Teacher of Fatikroy Class XII School, is hereby released from her duties with effect from 24.9.86 (Afternoon).

This refers to her resignation letter dated 20.8.86 and the resolution No.4 of the School Managing Committee dated 7.9.86 regarding acceptance of resignation of Smt. Bhattacharya."

On 22.02.2012 the petitioner had submitted a representation to the Drawing and Disbursing Officer (DDO) Harachandra Class-XII School at Manikbhandar, District-Dhalai where the petitioner claimed that one Sri Matilal Sharma, not a party in this proceeding and Sri Sambhu Chandra Lodh, the respondent No.8, who were/are according to the petitioner junior to the petitioner in service, as they had joined the service respectively on 23.02.1981 and 04.12.1981 in Harachandra Class-XII School but were drawing higher basic pay. In terms of Tripura State Civil Services (Revised Pay) Rules, 1999, ROP Rules 1999 in short, the petitioner urged for due consideration. In sequel, the petitioner submitted further representation on 17.10.2012 where she elaborated her claim. In crux, she submitted to the managing committee that her initial date of joining in the service be treated as 28.12.1979, the day when she joined in Fatikroy Class-XII School. The other two incumbents namely Matilal Sharma and Sambhu Chandra Lodh, both Post Graduate Teachers like the petitioner, since had joined the service respectively on 23.02.1981 and 04.12.1981 they cannot get higher pay in the post of Post Graduate Teacher (the substantive post is known as Assistant Teacher). Again on 07.02.2014 the petitioner repeated her claim to the Director of School Education by furnishing a comparative statement of basic pays of the petitioner and the respondent No.8 in the grade of Post Graduate Teacher, which projects as under:

Smti Kamala Bhattacharjee, PGT, Harachandra Class-XII School, Manikbhandar

Sri Sambhu Chandra Lodh, PGT, Harachandra Class-XII School, Manikbhandar

As per R.O.P. Rules, 1999

As per R.O.P. Rules, 1999 04.12.1998 Rs.7900/- by CAS-II Scale

01.12.1998 Rs.8100/-

6500-12300/- under FR 22C

01.01.1999 Rs.8300/- By Training Incentive

01.01.1999 Rs.8300/-

01.12.1999 Rs.8500/- By Increment

01.01.2000 Rs.8500/- By Increment

01.12.2000 Rs.8700/-

29.11.2000 Rs.8700/- By Training

01.12.2001 Rs.8900/-

Incentive

01.12.2002 Rs.9100/-

01.01.2001 Rs.8900/- By Increment

01.12.2003 Rs.9300/-

01.01.2002 Rs.9100/-

01.12.2004 Rs.9500/-

01.01.2003 Rs.9300/-

01.12.2005 Rs.9700/-

01.01.2004 Rs.9500/-

01.01.2006 Rs.9900/-

01.01.2005 Rs.9700/-

01.01.2006 Rs.9900/-

As per R.O.P. Rules, 2009

As per R.O.P. Rules, 2009

01.01.2006 Rs.22840/- By ACP-III

01.01.2006 Rs.22260/- By Fixation

01.07.2006 Rs.23420/- By Increment

01.07.2006 Rs.22820/- By Increment

01.07.2007 Rs.24010/-

04.12.2006 Rs.23790/- By ACP-III

01.07.2008 Rs.24610/-

01.07.2007 Rs.24390/- By Increment

01.07.2009 Rs.25230/-

01.07.2008 Rs.25000/-

01.07.2010 Rs.25990/-

01.07.2009 Rs.25630/-

01.07.2011 Rs.26770/-

01.07.2010 Rs.26400/-

01.07.2012 Rs.27560/-

01.07.2011 Rs.27200/-

01.07.2013 Rs.28410/-

01.07.2012 Rs.28020/-

01.07.2013 Rs.28860/-

In the said representation dated 07.02.2014, part of Annexure-11 collectively, the petitioner has asserted as under:

"As per above statement it clearly indicates that though I am senior to Sri Lodh, PGT by 2(two) years but drawing less pay than that of Sri Lodh.

In this connection I would mention here that Basic pay which has been allowed to Sri Lodh on 01.01.1999 is Rs.8300/- under FR-22C, whether it is tenable to him or not. And if it is yes then my basic pay would be stepped-up with Sri Lodh, PGT w.e.f. 01.01.1999 onward.

Respected Sir, the Managing Committee of this school has opined the statement furnished to them and proposed to take up necessary action for stepping-up of my Basic pay in reference to Sri Lodh, who is practically junior to me in service by 2(two) years."

In the meeting of the Managing Committee of Harachandra Class-XII School held on 21.12.2013 the Managing Committee had resolved as under:

"As per representation/letter No.2533 dated 18/10/2012 and the Reminder (1) dated 13/12/2013 of Smt. Kamala Bhattacharjee, PGT regarding stepping up of her pay with Sri Sambhu Chandra Lodh on the basis of her seniority to Sri Sambhu Chandra Lodh by 2 years as per her joining date in Fatikroy Class XII School on 28/12/1979. But she joined in Harachandra Class XII School on 25/09/1986 with pay protections the Managing Committee has recommended her letter and has come to the decision to give her stepping up of pay with Sri Sambhu Chandra Lodh, PGT as had prayed for."

By the communication under No. F.HHS(224-SUP)II 2014/5032 dated 07.02.2014, Pursuant to the said resolution dated 21.12.2013 the Director of School Education, Government of Tripura, the respondent No.2 herein, was requested to accord necessary approval for stepping up of the basic pay in reference to basic pay of Sri Sambhu Chandra Lodh, PGT of Harachandra Class-XII School w.e.f. 01.01.1999 onward. On scrutiny of Annexure-P/12, the Minutes of the meeting dated 21.12.2013, it transpires that Sri Sambhu Chandra Lodh, the respondent No.8, was also present in the said meeting which took resolution to extend stepping up of basic pay of the petitioner. Therefore, the respondent No.8 had the knowledge of the fact of stepping up w.e.f. 01.01.1999.

The Director of School Education by the memorandum under No. F.15(1-28)SE/GIA/2012(L)/841/250- 252 dated 11.05.2015, Annexure-P/18 to the writ petition, accorded clearance for stepping up in the following terms:

"Clearance is hereby issued to the Secretary, School Managing Committee, Hara Chandra Class-XII School, Manik Bhandar, Kamalpur for stepping up of the basic pay of Smt. Kamala Bhattacharjee, PGT in reference to Sri Shambhu Ch. Lodh, AHM of the same school."

The Managing Committee of Hara Chandra Class-XII School in its meeting held on 08.06.2015 took the following resolutions unopposed by any member:

"The Managing Committee has requested the Secretary of the Committee to accord step up of Smt. Kamala Bhattacharjee as per Memo No. F.15(1-28)SE/GIA/2012(L)/841/250-252, dated 11-05-2015 issued by the Director of School Education (Grant-in-aid). Accordingly, her due and drawn statement is being prepared and sent to the Directorate of School Education." [as extracted from the communication under No. F.HHS(C- 1)/H/2015.6845 dated 18.06.2015, Annexure-P/20 to the writ petition]

In terms of the order dated 14.07.2016 as passed by us, the respondents No.3, 4, 5 and 6 have produced the service records of the petitioner relating to the grant of movement to the higher scale under the Career Advancement Scheme (CAS). It appears from such record, particularly from initial pay statement as prepared pursuant to the ROP Rules, 2009 read with Tripura State Civil Services (Revised Pay) (6th Amendment) Rules, 2012 and Tripura State Civil Services (Revised Pay) (12th Amendment) Rules, 2015 that the petitioner was given benefit of fixation under CAS-3 after completion of 25 years of service on 28.12.2004. For purpose of reference, the relevant entry from the records as stated, is extracted hereunder:

"14. Revised basic pay (SL. No. 12 & SL. No.13) : Rs.23,390/-

Pay fixed on CAS-III after completion of 25 Years of service on 28-12-2004 : Rs.24,300/- (18,790 + 710 + 4,800)"

It is observed from the service book of the petitioner that the service book maintained in the Fatikroy Class-XII School since 11.12.1979 has been made part of the service book of the petitioner, though the petitioner was appointed in Harachandra Class-XII School w.e.f. 25.09.1986. The entry in this regard has been made on the page of the service book of Fatikroy Class-XII School as to keep the continuity of the service record. From the initial pay statement (TPS) as prepared in Harachandra Class-XII School, it appears that her pay was fixed in the following manner:

"Assistant Teacher,

600-35-950-40-990-45-1440/-

In pursuance of the Finance Deptt. Notification No. F.4(6)-Fin(PC)/88 dated 16.9.1988 and Director of School Education Memo No. F.10(7-1)- DSE/88 dated 27/28-9-88 pay of the incumbent has been re-fixed in the modified scale of pay of Rs.650/- 1595/- on 1.1.82 at the stage of Rs.650/- as per option exercised by the employee concerned. Regulation of pay thereafter:-

1.

1.1.1982

Rs.650/-

2.

10.1.1983

Rs.690/-

3.

10.1.1984

Rs.730/-

4.

22.1.1985

Rs.770/-

5.

22.1.1986

Rs.810/-

6.

22.1.1987

Rs.850/-

Sd/-Illegible

Headmaster

Harachandra Class-XII

School, PO Manikbhandar,

Tripura(N)

Sd/-Illegible

Headmaster

Harachandra,

Class-XIISchool,

Tripura(N)"

The above regulation of pay indicates to the petitioner''s entitlement in Harachandra Class-XII School in terms of the modified pay scales of Rs.650-1595/- since 01.01.1982. Accordingly, the petitioner was granted all the benefits fixing her pay at Rs.1960/- on 01.01.1988 in the revised scale of pay Rs.1700-3980/- in terms of the ROP Rules, 1988 and the subsequent entitlements followed based thereon. Apparent it is from the writ petition that on 25.09.1986 the pay of the petitioner was fixed at Rs.740/-. From a close scrutiny of the counter affidavit filed by the respondents No.1 and 2 read with the application being I.A. No.527 of 2016 [in W.P.(C) No.470 of 2015] that they had no reservation regarding the benefits extended to the petitioner by the respondent-school. Even they have not disputed nor expressed their reservation on the incidence of stepping up. On the contrary, they have asserted in the paras 28 and 29 as under:

"28. That in regard to the statement made in paragraph 21 of the writ petition it is stated that, the petitioner submitted her representation to the Respondent No.2 stating that being senior teacher she was getting less pay from her junior teacher Respondent No.8. Matter was examined by the respondent No.2. There is a provision in Rule- 14(6) of Tripura State Civil Services (Revised Pay) Rules, 2009. Where pay of a junior become higher than senior, in that case pay of senior may be stepped-up by re fixation of pay. The Respondent No.2 issued order for stepping-up of pay of the petitioner vide Memo No.15(1-28)- SE/GIA/12(L)/841/250-252 dated 11-05-2015.

A copy of the letter dated 11-05-2015 is enclosed as Annexure-R/2.

That in regard to the statement made in paragraph 22 of the writ petition it is stated that, Respondent No.2 already issued instruction to the Secretary, Managing Committee, Harachandra Class-XII School for giving financial benefit to the petitioner by stepping-up of her pay in reference to Respondent No.8."

[Emphasis supplied]

In the counter affidavit filed by the respondents No.3 and 5, those respondents have denied that the petitioner was given any pay protection or continuity of service. In this regard, they have referred to a communication under No. F.15(1-28)/AC/GIA/2012(L) dated 16.10.2014 Annexure-R/1 of the counter affidavit filed by the respondents No.3 and 5 wherein one Deputy Director has observed that since the petitioner joined in new service at Harachandra Class-XII School on 25.09.1986 to the post of A/T in the scale of pay of Rs.600-1440/- it was necessary to open a new service book in Harachandra Class-XII School for the petitioner and her new basic pay would be Rs.600/- i.e the initial pay in the scale of pay of Rs.600-1440/-. But the respondents did not make any averment whether that Deputy Director had any competence to observe or to direct the respondent-school in that manner. In the counter affidavit filed by the respondent No.4 it has been asserted in the para 19 as under:

"19. That, with respect to Paragraph-14 of the writ petition, it is stated that the Respondent No.7 also sent the amount of Rs.3548.65 being final payment of the CPF of the petitioner to the Respondent No.5. By this correspondence it is clear that the amount credited to CPF was not withdrawn by or disbursed to the petitioner. Therefore, it is presumed to be the continuation of service of the petitioner in the Harachandra Class-XII School."

The respondents No.8 and 6 by a common counter affidavit have not denied the incidence of stepping up with reference to the respondent No.8 in the basic pay. However, he has denied that the petitioner was given any pay protection for joining as the Post Graduate Teacher in Harachandra Class-XII School from Fatikroy Class-XII School on 24.09.1986. However, he has referred to another communication under No. F.10(36- 39)-DSE/94 dated 08.06.2001, Annexure-R/4 to the counter affidavit filed by the respondents No.8 and 6. From the said communication dated 08.06.2001, it transpires that though the Directorate of School Education has observed that the petitioner has made out a case of stepping up but for absence of any provision in the ROP Rules, 1988 or in ROP Rules, 1999 such difference of pay between the senior and junior employees cannot be removed as the difference has emerged for the reason that the senior employee moved to selection grade and was directly fixed under the provisions of old FR22C, the junior employee opted to get her pay fixed on the day of movement to the selection grade scale initially under the provisions of FR22(a)(i) and thereafter to get re-fixed her pay on the date of accrual of increment in the lower scale under the provision of FR22C. But the said respondent No.8 in his counter affidavit is evasive about the incidence of stepping up of pay with reference to his pay. The Secretary, Managing Committee of Fatikroy Class-XII School, the respondent No.7 herein also filed a counter affidavit separately where he has categorically stated as under:

"There is no denial of the fact that the Secretary, Fatikroy Class XII School had sent the letter bearing No. F.6(43)/79-80/Secy-FHS/185 dated 7.10.1986 to the Head Master, Harendra Chandra Class XII School, Manik Bhandar along with one service book of the petitioner and connected paper. This presupposes that those were sent for smooth proceeding of the petitioner in the Harendra Chandra Class XII School, Manik Bhandar with a view to get past service benefit as per service law.

She was favoured with Last Pay Certificate duly issued by the Secretary, Managing Committee, Fatikroy Class XII School. This was so issued for her smooth joining to the establishment of Harendra Chandra Class XII School after resigning from service of Fatikroy Class XII School."

The controversy which has surfaced and is the fundamental subject matter of the writ petition hinges around the seniority of the petitioner and the respondent No.8, based whereupon the respondent No.8 was appointed as the Assistant Headmaster having approved by the Directorate of School Education by the memorandum under No. F.15(1-28)-SE/GIA/2012 dated 03.08.2013, Annexure-P/14 to the writ petition. Initially the petitioner by filing a representation dated 26.09.2015, Annexure-P/23 of the writ petition, raised her serious objection as to the seniority list dated 12.07.2012, Annexure-P/14 of the writ petition. Full Text of the said representation dated 26.09.2015 is extracted hereunder:

"To

The Secretary

Managing Committee

Haracharan Class XII School

P.O. Manikbhander, Dhalai, Tripura

Sub: Statement expressing opposition to the seniority list of P.G.T. of Harachandra Class XII School published on 26.09.2015.

Sir,

I have the honour to inform you that I do not accede to the seniority list of P.G.T. of Harachandra class XII School published and produced before me on 26th September, 2015 as in the said seniority list my initial joining is 25.09.1986 instead of 28.12.1979 and thereby the list has not followed the guide lines of the Memo No. F.15(1-28)-SE/GIA/2012(L)/825 dated, Agartala, 21.07.2015 from director of School Education, Tripura, Agartala. Under the circumstances, you please look into the matter and oblige thereby.

Yours faithfully

Sd/- Illegible

(Kamala Bhattacharjee)"

Much prior to that, by the notice dated 17.05.2015, Annexure-P/15 to the writ petition, the petitioner pressed hard that she should be given the benefit of past service rendered by her in Fatikroy Class-XII School, she should be given pay protection and stepping up so that under no circumstances she draws pay less than of her junior, the respondent No.8 and the petitioner should be declared as senior to the respondent No.8 and be considered for promotion to the post of Assistant Headmaster.

In reply to the said notice dated 17.05.2015, the petitioner was apprised by the communication dated 04.06.2015, Annexure-P/19 of the writ petition as follows:

"Sub :- Reply to Legal Notice served to the Director of School Education, Tripura on behalf of Smt. Kamala Bhattacharjee, PGT, Harachandra Class-XII School, Kamalpur, Dhalai.

Ref :- Legal Notice No. F.PRB/LN/F.01/92 dated 17- 05-2015.

In reference to your legal notice vide your letter number as cited above, I am to inform you that:

i) Your client has already been received the financial benefit of past service rendered by her in Fatikroy Class-XII school because she has got her basic pay Rs.740/- in the scale of pay Rs.600- 1440/- which was continued from the date of joining in Hara Chandra Class-XII School. The Director of School Education gave no objection on the matter.

ii) The Director of School Education, Tripura already issued official order to the Secretary, School Managing Committee Hara Chandra Class-XII School, Manik Bhandar vide this office memo NO.F.15(1-28)-SE-GIA/12(L), dated 11-05-2015 for giving pay protection to your client. Now, the D.D.O. of Harachandra Class-XII School shall take next course of action for fixation of her pay and to prepare due and drawn statement for payment of her arrear pay.

iii) The Secretary, Managing Committee of Hara Chandra Class-XII School has been instructed very shortly to revise the teachers seniority list of Hara Chandra Class-XII School.

iv) Harachandra Class-XII School is not Government School. It is a privately managed Grant-in-Aid school. There is an elected Managing Committee. The Secretary of the school Managing Committee is the appointing authority of the school. The Director of School Education can not interfere directly in the school for giving promotion to any teacher without resolution of the meeting of Managing Committee and without recommendation of the DPC meeting organized in the school.

In this regard, the Director of School Education may request to the Secretary and President of the School Managing Committee of Grant-in-Aided School to hold urgent meeting and to discuss promotion matter of your client to take a decision unanimously to solve the problem and to send proposal to the Director of School Education to give formal approval.

This is for your kind information.

Yours faithfully,

Sd/- Illegible

Enclo:- 1(one)

(Sri U.K. Chakma)

Director, School Education,

Tripura"

From the records, we find that by the memorandum dated 11.05.2015, Annexure-P/18 of the writ petition, the Director of School Education approved the proposal for stepping up of the pay of the petitioner vis-a-vis the respondent No.8. In the meeting of the Managing Committee of Harachandra Class-XII School held on 08.12.2015, it was unanimously adopted as under:

"Resolution No.1

The Managing Committee has sent the resolution adopted by the Committee to the Director of School Education (Grand-in-aid) for clarification for making the list of seniority in between Sri Sambhu Chandra Lodh, AHM and Smt. Kamala Bhattacharjee, PGT. The seniority list of Post Graduate Teacher will be framed as per clarification Director of School Education. Necessary step will be taken for promotion to the post of Assistant Headmaster."

While sending for clarification and approval of the seniority list to the Director of School Education by the communication dated 17.06.2015, Annexure-P/21 of the writ petition, the Secretary to the Managing Committee, Harachandra Class-XII School had provided the following information-input and the background in the following manner:

"In framing the list of seniority of teaching staff of Post Graduate Teachers of Harachandra Class XII School, the Managing Committee has faced a problem regarding the base year and date of joining in service in between Sri Sambhu Chandra Lodh, AHM and Smt. Kamala Bhattacharjee, PGT. You are cordially requested to make it clear whether the Managing Committee should consider the joining date of Smt. Kamala Bhattacharjee in the previous school i.e. Fatikroy Class XII School or her date of joining in the present school i.e. Harachandra Class XII School according to the Grant-in-aid rules-2005 as the base year. Smt. Kamala Bhattacharjee had joined in Fatikroy Class XII School on 28-12-1979 and in the present school (Harachandra Class XII School) she joined on 25-09-1986 with pay protection and other service benefits. On the other hand, Sri Sambhu Chandra Lodh joined in Harachandra Class XII School on 04-12-1981.

Here a thing to be noted is that according to the Grant-in-aid rules-2005, seniority list will be determined with effect from the date he/she joins the service in the new school.

If the Managing Committee considers the joining date in service of Smt. Kamala Bhattacharjee in Fatikroy Class XII School as the base year, it shows that Smt. Bhattacharjee is the senior most teacher and if the Committee follows the Grant-in-aid rules-2005 it show that Sri Lodh is the senior most teacher.

It is here mentioned that the Director of school Education (Grant-in-aid section) vide the Memo No. F.15(1-28)/SE/GIA/2012(L)/841/250-252, dated 11-05-2015 and the letter No. F.15(1- 28)/SE/GIA/2012(L)/1121, Dated 04-06-2015 has granted step up and pay protection respectively of Smt. Bhattacharjee''s past service render by her in Fatikroy Class XII School from the date of her joining in the present school (Harachandra Class XII School).

As the Managing Committee could not reach at the final conclusion regarding their seniority for the said reason, the Managing Committee request you to clarify the matter for making the list of Seniority from your end."

[Emphasis supplied]

In response to that reference, Director of School Education by the memorandum under No. F.15(1-28)/SE/GIA/2012(L)/825 dated 21.07.2015, Annexure-P/22 of the writ petition, had communicated as under:

"MEMO

Ref:-No. F.HHS(224-SUP)/H/2015/6843 dated 17-06-2015

Sub:-Seniority list of teaching and non-teaching staff.

In ref. to his proposal vide no. as cited above, the Secretary, School Managing Committee, Hara Ch. Class-XII School, Manikbhandar, Kamalpur is hereby informed that guidelines for maintenance of seniority list of teaching and non-teaching staff of school may be seen in Rule-5(ii) at page-6 of the Tripura Grant-in-Aid (Govt. Aided Schools) Rules, 2005. The said rules came in force w.e.f. 31.5.2005.

The seniority list of teachers of Hara Ch. Class-XII School who were appointed before 31.5.2005 may be maintained on the basis of the criteria being followed in Government Schools i.e. seniority may be counted from the date of receipt of the scale of pay as Post Graduate Teacher for the purpose of promotion to the post of Assistant Headmaster.

This is for information and taking necessary action.

Sd/- Illegible

(Dr. P.K. Goyal, IAS)

Director of School Education

Tripura, Agartala"

[Emphasis supplied]

The guidelines as provided by the Director of School Education has clearly stipulated that Rule-5(ii) of Tripura Grant-in-Aid (Govt. Aided Schools) Rules, 2005 which has come in force w.e.f 31.05.2005 shall not be applicable in the case of the teachers of Harachandra Class-XII School who were appointed before 31.05.2005 but their seniority shall be counted from the date of their receipt of the scale of pay as Post Graduate Teacher for the purpose of promotion to the post of Assistant Headmaster. Despite the said clear guideline from the Director of School Education, the respondent No.8 has been shown senior to the petitioner in the feeder grade of the Assistant Teacher (PGT). Based on the said seniority position the respondent No.8 was appointed as the Assistant Headmaster of Harachandra Class-XII School on promotion in the scale of pay of Rs.9500-30000, Pay Band-3, Grade Pay Rs.3500/- plus other admissible allowance. In pursuance to the said letter of appointment under No. F.HHS(6-10)/S/2013/4005-A dated 05.0-8.2013, Annexure-P/24, the respondent No.4 by filing the joining report dated 06.08.2013, Annexure-P/25 to the writ petition, assumed the duties of Assistant Headmaster. The said joining report was approved and accepted by the Director of School Education by the memorandum under No. F.15(1-28)- SE/GIA/2012/888 dated 21.10.2013, Annexure-P/26 to the writ petition.

By means of this writ petition, the petitioner has challenged the said order dated 05.08.2013 appointing the respondent No.8 in the post of the Assistant Headmaster. As corollary thereof, the petitioner has further urged to quash the memorandum dated 21.08.2013 accepting the joining report of the respondent No.8 in the post of the Assistant Headmaster w.e.f. 06.08.2014 and the memorandum dated 09.08.2013 issued by the Joint Director, Directorate of School Education, Government of Tripura according approval to the proposal for filling up the post of Headmaster by promotion to the respondent No.8. Further, the petitioner has urged for direction to the respondents No.1 to 6 to treat the petitioner senior to the respondent No.8 in the grade of Assistant Teacher in Harachandra Class-XII School, Manikbhandar by taking the service rendered by the petitioner as Assistant Teacher in Fatikroy Class-XII School and to declare that Rule 5(ii) of Tripura Grant-in-Aid (Govt. Aided School) Rules, 2005 has no application for determination of the seniority of the petitioner and the respondent No.8. The petitioner has again urged that there shall be a direction on the respondents No.2 to 6 to remove pay anomaly by stepping up of the pay of the petitioner at par with the pay of the respondent No.8 and thereafter, the consequential directions for promoting the petitioner to the post of Assistant Head Mistress from the date on which the respondent No.8 was appointed to the said post of the Assistant Headmaster and to issue the formal order of stepping up of the pay of the petitioner at par with the respondent No.8. By the impugned judgment, learned Single Judge has observed as under:

(1) It shows that pursuant to the proposal for stepping up of the pay of the petitioner, the letter as written by the Deputy Director was not taken into cognizance by the Managing Committee and the petitioner enjoyed the benefit of pay protection which was allowed by the Administrator by the letter dated 08.11.1986, Annexure-P/3 to the writ petition from her joining to Harachandra Class-XII School. That benefit was never disturbed and since it was never challenged, it is clear that petitioner was enjoying the pay protection after resignation from Fatikroy on her joining to Harachandra Class-XII School.

(2) Even though a prayer of the petitioner for stepping up of her pay vis-a-vis the respondent No.8 was once rejected by the letter dated 16.10.2014, Annexure-R/1 to the counter affidavit of the respondents No.3 and 5, but subsequently the Director of School Education by the letter dated 11.05.2015, Annexure-P/18 to the writ petition approved of allowing the stepping up of the petitioner at par with the respondent No.8. It has been thereafter observed that:

"It appears that Annexure-R/1 dated 16.10.2014 and Annexure-P/18 i.e. Memo dated 11.05.2015 are quite contradictory with each other issued by the Directorate of School Education but the fact remains that Memo dated 11.05.2015 has been issued later on pursuant to the reference made by the Secretary of the School Managing Committee and that Memo dated 11.05.2015 stands good and has been complied with. The petitioner, therefore, got the stepping up at par with respondent No.8."

Based on the certificate dated 24.07.1998, whereby it has been declared that continuity of the service of the petitioner as an Assistant Teacher was granted by the Director of School Education, Government of Tripura, the petitioner''s claim of continuity in service has been held to be ''highly a disputable fact'' in view of varying stands taken by the respondent No.4 in the para 20 of his counter affidavit, the respondents No.3 and 5 in the para 12 of their counter affidavit and the respondents No.6 and 8 in para 15 of their counter affidavit. It has been observed that even the respondent No.4 has stated that he has no personal knowledge about that but however, he stated it to be true whereas the other respondents i.e. the respondent No.3, 5, 6 and 8 have highly disputed it stating that it was not issued from the School in the official process and bare reading of the same would also show that it was simply a certificate issued by the Headmaster in the personal capacity, even if it is believed to be true. For affording such a benefit a decision ought to have been taken by the Managing Committee and that ought to have been approved by the Director of School Education. There is no such record that any resolution was adopted by the Managing Committee in this regard or the Director of Education approved it. So, the claim of the petitioner of her continuity of service is a highly disputed fact and cannot be accepted.

Immediately thereafter, the learned Single Judge has observed that the petitioner was allowed pay protection on her joining at Harachandra Class-XII School and she was given stepping up at par with the respondent No.8 and those relate to financial benefits given to the petitioner that by itself cannot prove that the service of the petitioner from the date of her joining in Fatikroy Class-XII School should be accepted as continued after her resignation from Fatikroy Class-XII School in Harachandra Class-XII School. There is no such decision/resolution of the Managing Committee of Harachandra Class-XII School to that effect with approval of the Director of School Education. In absence of any such resolution and approval thereof the petitioner cannot claim continuity in service only on the ground of pay protection and stepping up of pay.

On the aspect of whether the Tripura Grant-in-Aid (Govt. Aided School) Rules, 2005 would have any application for determining the seniority of the petitioner and the respondent No.8, the learned Single Judge observed that:

"I am in full agreement with the contention of learned Sr. counsel, Mr. Deb that the Rule since has no retrospective effect, shall apply only with effect from the date of its coming into force that means it has a prospective effect only. The petitioner and respondent No.8 both joined the service of Harchandra Class XII School before the Rule came into force. So, the stipulation in the Rule that-"���

If any in-service teaching or non teaching employee comes from another unit or school and joins services in any privately managed school, his/her position in the seniority list will be determined with effect from the date he/she joins the service in the new school;" shall not apply in the case of the petitioner. Managing Committee of the school has already taken a resolution on the issue as already discussed hereinbefore and the same should be forwarded to the Director, School Education for approval."

Further, it has been observed that in the meeting of the Managing Committee held on 30.08.2013 the respondent No.8 had attended and by that meeting the appointment of the respondent No.8 was ratified. Since the respondent No.8 being the beneficiary and participated in the meeting in the capacity of the Secretary of the Managing Committee, the whole process has got vitiated. Hence, the appointment of the respondent No.8 as the Assistant Headmaster by the letter dated 05.08.2013 has been quashed.

By the impugned judgment the Managing Committee of Harachandra Class-XII School has been directed to communicate the resolution of the Managing Committee dated 19.09.2015, Annexure-R/1 to the counter affidavit filed by the respondent No.4 to the Director of School Education within 15 days from the date of judgment by writing a forwarding letter. Simultaneously, the Director of School Education has been directed to take a decision on the said resolution dated 19.09.2015 within 15 days from the date of communication from the Secretary of the School Managing Committee. Thereafter, as interim measure it has been observed as follows:

"For the interim period, the Director of School Education may take appropriate step in respect of the charge of Asst. Headmaster of the School and it is left open to the wisdom of the Director that he may keep the incumbent as the Asst. Headmaster to continue till the stipulated date of 30 days or may appoint temporarily any other eligible Asst. Teacher with the charge of Asst. Headmaster for the interim period till a decision as aforesaid is taken pursuant to the resolution of School Managing Committee."

From the resolution, Annexure-R/1 to the counter affidavit filed by the respondent No.4 as adopted by the Managing Committee of Harachandra Class-XII School held on 19.09.2015 it appears as under:

"Resolution-1

It is resolved that Sri Sambhu Chandra Lodh, AHM of Harachandra Class XII School is the senior most Post Graduate Teacher of Harachandra Class XII School as per Grant-in-Aid Rules-2005.

Resolution-2

It is also resolved that a seniority list of teaching and non-teaching staff of Harachandra Class XII School will be prepared by 28th Sept., 2015.

(I am not agreeing with the resolution No.1) Binoy Bhusan Roy 19-09-2015

Sd/- Illegible

President,

Managing Committee,

Harachandra Class-XII School

Manik Bhander, Dhalai Tripura"

True it is that the petitioner has relied on the certificate dated 24.07.1998 to claim her continuity of service. The said certificate is extracted hereunder for reference to its content:

"Harachandra Class XII School P.O. Manikbhandar, Dist. Dhalai, Tripura Dated, Manikbhandar, the 24th July, 1998

TO WHOM IT MAY CONCERN

Certified that continuity of services of Smt. Kamala Bhattacharjee as an Assistant Teacher in this Institution has been granted by the Director of School Education, Government of Tripura.

Sd/- Illegible

Assistant Headmaster

(Head of Office)

Harachandra Class-XII School

P.O. Manikbhander, Dist. Dhalai

TRIPURA"

Except the respondent No.4, other respondents have not admitted the knowledge that the Director of School Education had granted continuity of service to the petitioner. The respondent No.8 even questioned the document stating it to be false and to have been created in connivance with the then Assistant Headmaster. According to him, that is the reason why there is no reference of the communication made by the Director of School Education. In crux, he has questioned the genuineness of the said certificate. Even the respondents No.1 and 2 did not vouch for such decision as contained in the said certificate by filing a petition for amending the counter affidavit. In the original counter affidavit, the respondents No.1 and 2 in the para 22 had admitted that the continuity was granted by the Director of School Education and they vouched for the certificate dated 24.07.1998. But in the application for amendment the respondents No.1 and 2 have averred as under:

"But on further scrutiny of the record maintained in the office of the Director of School Education it is found that there is no such certificate in the record. Therefore, the answering respondents intend to delete the aforesaid averment and takeout Annexure-R/1 from the affidavit and intend to insert in the paragraph 22 after the word it is stated that in the 3rd line of the paragraph that the petitioner is to prove the averments made in paragraph."

In this context, Mr. S. Deb, learned senior counsel appearing for the writ petitioner-appellant has submitted that the decision of the learned Single Judge is fraught with mutually destructive reasoning. He has submitted that from the service record it would be apparent that while fixing the initial pay in Harachandra Class-XII School, the Managing Committee has taken into consideration the past service of the petitioner and accordingly on 25.09.1986 the petitioner''s pay was fixed. Even the learned Single Judge by the impugned judgment has observed that from the very inception of her joining to Harachandra Class-XII School the petitioner was enjoying ''pay protection''. Despite that, the issue relating to continuity of service has been left in the lurch without directing the consideration to the relevant records. Thus, the finding as returned by the learned Single Judge cannot be sustained. Mr. Deb, learned senior counsel has further asserted that the benefit that accrues from the stepping up cannot be simply treated a financial benefit inasmuch as the stepping up presupposes that a junior employee is getting higher pay in the same grade in comparison to his senior. That aspect of the matter has been mechanically discarded by the learned Single Judge, else he would find a well-considered ramification in granting stepping up in favour of the petitioner. Mr. Deb, learned senior counsel therefore urged this court to examine the records and set aside the finding as returned by the impugned judgment.

From the other side, Mr. P.K. Biswas, learned senior counsel appearing for the respondents No.3, 5, 6 and 8 has submitted that there is no record to demonstrate that the petitioner was given continuity of service vis-a-vis her first service as the Post Graduate Teacher in Fatikroy Class-XII School. According to him the petitioner resigned and joined afresh as the Post Graduate Teacher in Harachandra Class-XII School and hence there cannot be any continuity. In this regard, Mr. Biswas, learned senior counsel has submitted that similar question had fallen for consideration before the apex court in State of Madhya Pradesh & Ors. v. Hitkishore Goswami reported in (2015) 11 SCC 199 where it has been observed as under:

"15. In our considered opinion, the Respondent was not entitled to claim the benefit of his past services which he rendered from "02.07.1963 to 02.01.1966" as Lecturer in the Government Schools while determining his qualifying service for fixing his pension etc. It was for the reason that Respondent having voluntarily tendered his resignation from the said service without there being any condition much less a condition to enable him to claim any kind of its benefit in the event of his joining other services with the State, no benefit of such past services was available to the Respondent.

In our considered opinion, the effect of tendering the resignation by the Respondent-may be for any reason was that the relationship between the parties insofar as that particular employment was concerned got severed for all purposes leaving no benefit to remain in Respondent''s favour. It had no connection with Respondent''s subsequent employment which began from "03.01.1966".

Indeed, in order to claim continuity in the service for claiming any benefit arising therefrom, it was necessary for the Respondent to have shown any specific rule or condition recognizing such right in his favour. The Respondent, however, was not able to show any such rule or/and condition in his favour.

It is a trite law that a right to claim pension is governed by the statue. An employee has, therefore, no right to claim any benefit in relation to pension dehors the statute.

The learned Counsel for the Respondent, however, vehemently urged that keeping in view the Respondent''s unblemished service record with the State, it can safely be taken that there was no break in the service, which entitled the Respondent to claim benefits flowing from his past and present services including its continuity qua the State. We find no merit in this submission in the light of our finding recorded in the preceding paragraph.

In the light of foregoing discussion, we are of the considered opinion that the courts below erred in directing the State to give benefit to the Respondent of his services which he had rendered from "02.07.1963 to 02.01.1966" for fixing his pension without properly examining the effect of his tendering resignation on the issue raised in the writ petition.

In our opinion, the Respondent was, therefore, entitled to get the benefit of his services rendered from "03.01.1966" onwards as mentioned by him in the Form (Annexure-P-1) for assessing his pension, gratuity and other retiral benefits etc.

Mr. Biswas, learned senior counsel having placed reliance on Hitkishore Goswami (supra) has contended that effect of tendering the resignation by the petitioner is that the relationship got severed for all purposes ''leaving no benefit to remain'' in the petitioner''s favour. The past service therefore cannot be added to the subsequent service. Mr. Biswas, learned senior counsel has also placed reliance on Union of India and another v. V.N. Bhat reported in (2003) 8 SCC 714 which decision is based on Dwijen Chandra Sarkar v. Union of India reported in (1999) 2 SCC 119. It would be apposite to reproduce the passages as referred by Mr. Biswas, learned senior counsel from V.N. Bhat (supra). Those passages are as under:

"4. The submission of the learned counsel for the appellants in short is that having regard to the admitted fact that the respondent herein has not completed 16/26 years in the postal service, the One Time Bound Promotion Scheme or B.C.R. Scheme is not applicable in his case. The fact that the respondent herein had completed 18 years of service in the Ministry of Defence is not disputed. The question which, therefore, arises for consideration is as to whether the period of service rendered by the respondent in the Ministry of Defence should be wiped off for all purposes? The well settled principle of law that even in the case where the transfer has been allowed on request, the employee concerned merely loses his seniority, but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion. In terms of the Schemes aforementioned, promotion is to be granted for avoiding stagnation only within the said parties. The said Schemes have been framed because they are beneficial ones and thus required to be implemented. The Scheme merely perused that any person having rendered 16/26 years of service without obtaining any promotion could be entitled to the benefit therefor. It is, therefore, not a case where promotion to the higher post is to be made only on the basis of seniority. Even in a case where the promotion is to be made on the selection basis, the concerned employee, even if he be placed at the bottom of the seniority list in terms of the order of transfer based in his favour, he cannot be deprived of being considered for promotion to the next higher post if he is eligible therefore. This aspect of the matter is clearly covered by the three decisions of this Court, namely, A.P. SEB v. R. Parthasarathi : (1998) 9 SCC 425, Scientific Advisor to Raksha Mantri v. V.M. Joseph : (1998)5 SCC 305 and Renu Mullick v. Union of India : (1994)1 SCC 373.

The aforementioned decisions have been followed by this Court in Dwijen Chandra Sarkar and Anr. v. Union of India and Ors.: (1999) 2 SCC 119 in the following paras:(SCC pp.124-25, paras 14 & 17)

"(14) The words "except seniority" in the 1983 circular, in our view, mean that such a benefit of a higher grade given to the transferees will in no way affect the seniority of employees in the P&T Department when the turn of the P&T employees comes up for promotion to a higher category or post. The said words "except seniority" are intended to see that the said persons who have come from another Department on transfer do not upset the seniority in the transferee Department. Granting them higher grade under the Scheme for Time bound Promotion does not, therefore, offend the condition imposed in the transfer order. We are, therefore, of the view that the appellants are entitled to the higher grade from the date on which they have completed 16 years and the said period is to be computed on the basis of their total service both in the Rehabilitation Department and the P&T Department.

(17) On the facts of the present case and especially in view of the aforesaid decisions, we are of the view that when the transfer is in public interest and not on request, the two employees transferred cannot be in a worse position than those in the above rulings who have been transferred on request and who in those cases accepted that their names could appear at the bottom of the seniority list. Even in cases relating to request transfers, this Court has held, as seen above, that the past service will count for eligibility for certain purposes though it may not count for seniority."

Mr. Biswas, learned senior counsel has thus contended that the past service may count for certain purposes but it may not count for seniority in view of V.N. Bhat (supra).

Before we appreciate the contentions raised by the learned counsel for the parties one aspect which forms the background of granting the stepping up of the pay of the petitioner with reference to the respondent No.8 may be noticed. In the meeting of the Managing Committee held on 21.12.2013, it was resolved vide the resolution No.3, of the Minutes of the meeting, that as per representation/letter No.2533 dated 18.10.2012 and the reminder dated 13.12.2013, the petitioner claimed stepping up of her pay vis-a-vis Sri Sambhu Ch. Lodh as she is senior to Sri Sambhu Ch. Lodh by 2 years as per her joining date in Fatikroy Class-XII School on 28.12.1979. But she joined in Harachandra Class-XII School on 25.09.1986 with pay protection. The managing committee had recommended her letter and had come to the decision to give her stepping up of pay with Sri Sambhu Ch. Lodh, PGT as prayed. It is an admitted position now that the said benefit has been given to the petitioner in terms of the memorandum dated 11.05.2015, Annexure-P/18 to the writ petition whereby the approval was accorded by the Director of School Education. Even in the reply to the notice dated 17.05.2012, the Director of School Education, Tripura by the communicated dated 21.06.2015, Annexure-P/19 to the writ petition, has clearly observed as follows:

"Your client has already been received the financial benefit of past service rendered by her in Fatikroy Class-XII school because she has got her basic pay Rs.740/- in the scale of pay Rs.600-1440/- which was continued from the date of joining in Hara Chandra Class-XII School. The Director of School Education gave no objection on the matter."

In view of that clear stand and what has been recorded in the service book as reproduced in the foregoing para-11, it transpires clearly that from the very inception the Managing Committee had allowed the petitioner ''continuity'' in the service and accordingly they fixed the pay of the petitioner under the modified scale which had come into effect from 01.01.1982 in terms of the ROP Rules, 1988 and paid the arrears accordingly. Had there been no continuity, the petitioner would have received the said benefit till 24.09.1986 from her previous school. Learned Single Judge has also clearly observed that the petitioner was enjoying pay protection after resignation from Fatikroy Class-XII School. From the communication dated 08.11.1986 by the Administrator, Harachandra Class-XII School issued to the petitioner, it transpires that the petitioner''s pay was fixed at Rs.740/- on the basis of the last pay certificate. In this regard, it has to be mentioned that grant of protection of pay may not be the yardstick to determine whether the continuity in the service was given to the petitioner or not. But when the petitioner was given CAS-3, it has been clearly spelt out that on 28.12.2004 the petitioner had completed 25 years of service and accordingly the petitioner was given movement to the higher scale of pay. None of the respondents has raised any question about grant of the CAS-3 on 28.12.2004. That apart, when granting the stepping up benefit to the petitioner in reference to the respondent No.8 nobody including the respondent No.8 who was present in the meeting of the Managing Committee held on 21.12.2013 raised any objection. Even the respondents No.1 and 2 gave approval. The objection as raised by the respondent No.8 by filing the counter affidavit is hit by estoppel by conduct. However, the rejection of such claim in 2001 was based on absence of any enabling rules. The said rejection was not on merit but subsequently when the enabling rules had been inserted in the Tripura State Civil Services (Revised Pay) Rules, 2009 as amended from time to time, the said stepping up was allowed. There had been no challenge by the respondent No.8 in respect of the said stepping up before filing of the writ petition or thereafter.

The stepping up is a well defined tool in the service jurisprudence. The basic requirements for stepping up are:

It must be in relation to two employees borne in the same grade.

The stepping up must be in relation to a senior employee and a junior employee and hence, unless the seniority is finalized, the stepping up cannot be granted. In other words, the stepping up itself determines the positions of those employees vis-a-vis the seniority.

By means of stepping up, the pay of the senior employee is made equal to the pay of the junior employee from the date when the junior employee started getting higher pay in comparison to that of the senior employee. However, in some cases such stepping up can be denied if it is found that the junior employee had been given the special pay in recognition of his contribution or efficiency. It is not the case here.

From the resolution as extracted, it is clearly found that the Managing Committee and the respondents No.1 and 2 having considered the petitioner senior to the respondent No.8 have allowed stepping up of the pay of the petitioner to equate the same with the respondent No.8 who is admittedly had entered into the services under Harachandra Class-XII School on 04.12.1981 [particulars have been provided in the foregoing para-4].

The finding of the learned Single Judge in this regard may be reiterated.

"But the fact remains that the memo dated 11.05.2015 has been issued later on pursuant to the reference made by the Secretary of the School Managing Committee and that memo dated 11.05.2015 stands good and has been complied with. The petitioner therefore got the stepping up at par with the respondent No.8"

Even if, the certificate of continuity of services dated 24.07.1998, Annexure-P/10 to the writ petition, is not considered, then also from the records it emerges beyond any sort of doubt that the respondents have granted all benefits of the past service including the continuity, even the final withdrawal of Contributory Provident Fund (CPF) has been received by the Harachandra Class-XII School and it was never disbursed to the petitioner. This indicates further that the petitioner was granted continuity of service on consideration of her past service in Fatikroy Class-XII School and there was no severance at all. Had there been severance in absence of any condition in the offer of appointment dated 07.08.1986, Annexure-P/2 to the writ petition, the petitioner''s pay on 25.09.1986 would not have been fixed at Rs.740/- in terms of the letter dated 08.11.1986 nor she would have been given the benefit of CAS-3 for her completion of 25 years of service on 28.12.2004 nor had she been given the benefit of stepping up treating the respondent No.8 as junior to her. All these are the settled position and the respondents are not entitled to urge this court in any manner to unsettle such settled position particularly when the petitioner would superannuate on 22.10.2016 on completion of 60 years of age.

What the apex court has observed in Hit Kishore Goswami (supra) has been so observed in the context of that case, which is entirely different from the context of this case. In this case clearly there is an order to grant fixation of pay at Rs.740/- on 25.09.1986 by the Administrator, Harachandra Class-XII School [see the letter of appointment/communication dated 08.11.1986 issued by the Administrator, Harachandra Class-XII School] on the very inception of the appointment of the petitioner under Harachandra Class-XII School. The respondents No.1 and 2 have clearly stated that they have no objection to such arrangement.

The petitioner continued to enjoy such benefit all along. One letter of the Deputy Director dated 16.10.2014, Annexure-R/1 to the counter affidavit filed by the respondent No.8, has been relied but the said decision has been superseded by the Director of School Education by implication while giving approval to the stepping up. Even the respondent No.8 did not challenge the said decision of stepping up. This court is clearly of the view that by the appointment letter dated 08.11.1986 the competent authority had granted protection of pay and they continued the petitioner''s service in Harachandra Class-XII School. On the basis thereof, the petitioner was granted all subsequent benefits as stated.

The learned Single Judge by the impugned judgment has further directed the Secretary, Managing Committee of Harachandra Class-XII School to communicate the resolution of the Managing Committee dated 19.09.2015 for approval of the Director of School Education. Even the Director of School Education has been directed to take a decision regarding approval within the timeframe as stipulated in the said judgment. This direction, according to us, is unsustainable inasmuch as the said resolution provides that Sri Sambhu Chandra Lodh, AHM of Harachandra Class-XII School is the senior-most Post Graduate Teacher as per Grant-in-Aid Rules, 2005 [see the foregoing para-27 for the extract of the resolution]. There is no amount of dispute that the Tripura Grant-in-Aid (Govt. Aided Schools) Rules, 2005 came into effect from 31.12.2005. By the Memorandum dated 21.07.2015 Annexure-P/22 to the writ petition, the Director of School Education had clearly observed that seniority list of the teachers of Harachandra Class-XII School who were appointed before 31.05.2005 may be prepared and maintained on the basis of the criteria being followed in the Government School i.e. seniority may be counted from the date of receipt of scale of pay as Post Graduate Teacher for purpose of promotion to the post of Assistant Headmaster. The view of the Director of School Education as reflected in the memorandum dated 21.07.2015 is, according to us, a correct view inasmuch as no rule can be given retro-active operation unless such operation has been provided in the rules and hence the said direction of the learned Single Judge is set aside. Further, the said resolution dated 19.09.2015 of the Managing Committee declaring the respondent No.8 as senior to the petitioner is interfered with and set aside. As we have already observed that the petitioner has been given the continuity of service for all purposes from the date of receiving the Post Graduate scale i.e. 28.12.1979. As such, the petitioner is declared to be senior to the respondent No.8 for the reasons as stated before. The respondents No.1, 2, 3, 4, 5 and 7 are directed, as consequence of such declaration, to consider the petitioner for promotion to the post of Assistant Head Mistress (AHM) as on 05.08.2013 when the respondent No.8 was appointed as an Assistant Headmaster of Harachandra Class-XII School on promotion and in the pay scale of Rs.9500-30000/-, Pay Band 3, Grade Pay Rs.3,500/- with admissible allowances within a period of one month from today and if it is found the petitioner was suitable to be appointed as the Assistant Head Mistress/Head Mistress of Harachandra Class-XII School she shall be appointed w.e.f. 05.08.2013. As it has been averred in the writ petition that the petitioner would superannuate on 22.10.2016 on completion of 60 years of age and she would retire on 31.10.2016 (afternoon), as per rule the petitioner''s pay be fixed notionally in the said scale of pay of Rs.9500-30000/-, Pay Band 3, Grade Pay Rs.3,500/- with admissible allowance till her retirement if she is found otherwise suitable for the post of Assistant Head Mistress/Head Mistress. She will be entitled to the actual financial benefit by means of pension, in the event of her appointment as the Assistant Head Mistress/Head Mistress w.e.f. 05.08.2015, as on the basis of the last pay drawn her pension and other retiral benefits would be required to be redrawn and paid with arrears.

We are not inclined to interfere with the decision of the learned Single Judge by quashing the letter of appointment dated 05.08.2013, Annexure-P/24 to the writ petition, for the reasons that the same consequence would entail for our observation as made above. We reiterate that the said letter of appointment dated 05.08.2013 is as well unsustainable for considering the respondent No.8 senior to the petitioner.

Before parting of the records, the respondents No.1, 2, 3 and 5 are directed to release the arrear pay and allowances of the petitioner on account of the stepping up, if not paid by now, within a period of 1(one) month from the date of receiving the copy of this judgment and order from the petitioner.

Having held thus, this appeal stands allowed to the extent as indicated above. However, there shall be no order as to costs.