Sheikh Abdullah Vs the State of Assam and 3 Ors.

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GAHC010087452024

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2026:GAU-AS:4

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2427/2024

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SHEIKH ABDULLAH S/O- LATE ISTANUR RAHMAN, R/O- PARUL BHAWAN, H.NO-6, FOUZDARIPATTY, S.B ROAD, P.O- NAGAON, P.S- NAGAON, DIST- NAGAON, ASSAM, PIN-782001

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION (SECONDARY), DISPUR, JANATA BHAWAN, GUWAHATI-6.

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19.

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3:THE INSPECTOR OF SCHOOLS NAGAON DISTRICT CIRCLE DISTRICT- NAGAON ASSAM PIN-782001

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Deepjyoti Sarkar Digitally signed by Deepjyoti Sarkar Date: 2026.01.06 14:38:44 +05'30'

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4:ANITA LASKAR ASSTT. TEACHER DAKHINPAT H.S SCHOOL P.O- BALIGAON DIST- NAGAON ASSAM PIN-78214

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For the Petitioner : Mr. M.H. Choudhury (Sr. Adv.), Mr. S.N. Ahmed. ……Advocates. For the Respondents : Ms. D. Musahary, SC, Sec. Edu. ……Advocate.

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Date of Hearing	:-	04.12.2025 & 16.12.2025
Date on which judgment is reserved	:-	16.12.2025
Date of pronouncement of judgment	:-	05.01.2026
Whether the pronouncement is of the operative part of the judgment?	:-	N/A
Whether the full judgment has been pronounced?	:-	Yes

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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JUDGMENT AND ORDER (CAV)

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Heard Mr. M.H. Choudhury, learned Senior Counsel, assisted by Mr. S.N. Ahmed, for the petitioner and also heard Ms. D. Musahary, learned standing counsel, Secondary Education Department, appearing for the respondent Nos. 1, 2 & 3.

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2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order, dated 03-10-2023 (Annexure-F), passed by the Director of Secondary Education, Assam and also the order dated 10-04-2024 (Annexure-I), passed by the Inspector of Schools, NDC Nagaon and also to issue direction to the state respondents, more particularly the respondent No. 2, to allow petitioner to hold charge of the post of Principal of Dakshinpat Higher Secondary School.

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3. Notably, vide order dated 03-10-2023 (Annexure-F), the Director of Secondary Education, Assam has allowed the Inspector of Schools (Respondent No. 3), to hold the charge of Principal of the said Higher Secondary School, with financial powers, to draw and disburse the salary of the staff of the school in addition to his normal duties, under F.R 49 (C). Surprisingly the effect of the order is given from 01-09-2023. And vide impugned order, dated 10-04-2024 (Annexure-I), the Inspector of Schools, NDC, Nagoan has allowed the private respondent No. 4, namely Smt. Anita Laskar to look after the academic affairs of the said school in addition to her normal duties.

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Background Facts:-

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4. The background facts, leading to filing of the present petition, are adumbrated herein below:-

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“The petitioner was appointed as Asstt. Teacher (Hindi), at Dakshinpat Higher Secondary School of Nagaon District, on 30-04-1991, and he joined on 03-05-1991, and started serving in the aforesaid capacity. He also received graduate pay scale from 01-04-1993, continuously. As per the seniority list of teachers of Dakshinpat Higher Secondary School, prepared by the then Principal of the said school on 14-08-2023, the name of the petitioner appeared at serial No. 1 and said list of seniority was submitted to the Inspector of Schools, as he was to retire on 3108-2023, and as there is a requirement of appointing one In-Charge Principal. Thereafter, the name of the petitioner was forwarded to the Inspector of Schools, Nagaon being the senior most teacher, and therefore, he was expecting that he will be allowed to hold the charge of Principal. But, surprisingly on the day of retirement of the erstwhile In-charge Principal, i.e., 31-08-2023, the Inspector of Schools directed one Shri Laba Kanta Sarma, Asst. Teacher of the said school, to look after the academic affairs of the school in addition to his normal duties w.e.f. 01-09-2023, till In-charge Principal is appointed, who is junior to the petitioner, but the petitioner did not object seriously as he was waiting for appointment as In-charge Principal. And while the petitioner was expecting his appointment from the office of the Respondent No.2, very surprisingly, the Director, Secondary Education, Assam, Kahilipara, passed an order, whereby, he has allowed the

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Inspector of Schools (Respondent no. 3) to hold the charge of Principal of the said Higher Secondary School with financial powers to draw and disburse the salary of the staff of the school in addition to his normal duties, under F.R 49 (C). Surprisingly also the effect of the order is given from 01-09-2023. Though the petitioner had filed two representations, one on 14-11-2023, and the other on 23-03-2024, the same failed to evoke any response. Thereafter, on 10-04-2024, the Inspector of School, NDC, Nagoan, has allowed the private respondent No. 4, namely Smt. Anita Laskar, to look after the academic affairs of the said school in addition to her normal duties, who is also junior to the petitioner and her name is at Serial No. 3 of the seniority list (Annexure D). And being aggrieved, the petitioner approached this Court by filing the present petition.”

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5. The respondent No.2 i.e. the Director of Secondary Education, Assam, Kahilipara, has filed affidavit-in-opposition, wherein a stand has been taken that consequent upon the retirement of Sri Bhubaneswar Saikia, Principal in charge of Dakshinpat Higher Secondary School, on 31.08.2023, the Inspector of Schools, NDC, Nagaon, Dist.- Nagaon submitted the seniority list of Teachers of the said school, vide letter No. IS/NDC/AAP/HM-PRIN/2023/2119, dated 21.08.2023. On perusal of the aforesaid seniority list, dated 21.08.2023, as well as relevant documents, the Inspector of Schools, NDC, Nagaon was allowed to hold the charge of Principal in-charge of Dakshinpat Higher Secondary School, Dist- Nagaon vide the office order No. E- 376781/33, dated 03.10.2023.

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It is also stated that as per the seniority list, the date of birth of the

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petitioner is 01.06.1967, and as such on 01.01.2025, the petitioner i.e. Md. Sheikh Abdullah age 57 years 7 months. And as per Rule 12(3)(v) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018, it clearly states that:-

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(3) The minimum qualifications for appointment to the post of Principal in Higher Secondary School and Senior Secondary School shall be as follows:

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(v) The age of the candidates must not be more than 57 years as on the first January of the year of recruitment:

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Provided that the service and teaching experience acquired in a School during provincialized period shall be counted. The period rendered prior to provincialisation of the school shall not be counted.

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And accordingly, the petitioner i.e. (Md. Sheikh Abdullah) is not entitled to be considered for the post of Principal in-charge of Dakshinpat Higher Secondary School. It is also stated that the petitioner is M.A, Parangat, Assistant Teacher of Dakshinpat Higher Secondary School (enlisted SL No.1 of the seniority list) who received Graduate Scale of pay w.e.f. 01.04.1993, and acquired M.A degree in 1995 from Gauhati University, during his service period, without taking prior permission from the Appointing Authority, which does not fulfill Section 13 of the Assam Civil Services (Conduct) Rules 1964, which states that- "No Govt. Servant while in Government Service shall join or attend any educational institution for the purpose of preparing himself for or shall appear at an examination of a recognized Board or University without obtaining prior/previous permission from the appointing authority".

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It is also stated that a show cause notice was also issued to the petitioner, by the Inspector of Schools, Nagaon vide letter No. IS/NDC/AAP/SUSHM/2025/1451, dated 14.05.2025 and Disciplinary Proceeding is pending against the petitioner i.e. (Md. Sheikh Abdullah). And view of aforesaid facts and circumstances, the Inspector of Schools, NDC, Nagaon was allowed to hold the charge of Principal In-charge, Dakshinpat Higher Secondary School, DistNagaon. Since the petitioner has not fulfilled the requisite criteria, more specifically Rule 12(v) of the Assam Secondary Education (Provincialised Schools) Rules, 2018, he is therefore not entitled to the same.

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6. The petitioner has filed his affidavit-in-reply to the affidavit in opposition filed by the respondent No.2. In the said reply, he had stated that the Inspector of the Schools of Nagaon is now holding charge of Principal of more than 20 numbers of different schools. It is also stated that when the erstwhile In-charge Principal had retired, then vide order dated 03-10- 2023, the aforesaid Inspector of Schools was given charge of the in-charge Principal of aforesaid Higher Secondary School, he (the petitioner) was 56 years 4 months 2 days. And therefore, on the of retirement of Sri Bhubaneswar Saikia the date of giving the charge of In-charge Principal to the aforesaid Inspector of Schools, the petitioner was not over aged and it is only because the authority did not give charge of the In- Charge Principal to the petitioner on time and after depriving him for long, they have mentioned 01-01-2025 in the said para No. 6 only to show him overage. Moreover, the present writ petition was filed on 29-04-2024 and since then more than one and half years have passed and the present writ petition is pending and respondents have prayed for time to file their affidavit, only to make this writ petition as infructuous. Further, it is stated that so far the Rule 12 (3) (V) of the Assam Secondary Education (Provincialised Schools)

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Service Rule, 2018 is concerned, it should have been applied to the petitioner when the post of Principal was fallen vacant i.e., on 31-08-2023, or at the time of giving appointment to the present in-charge which is on 03-10-2023, instead of giving in-charge ship to the Principal, they waited till 8^th November, 2025 to show the petitioner as overage and therefore, it shows mala-fide on the part of the respondent. Further, it is well settled that the rights of the parties crystalizes on the day of filing of writ petition.

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It is also stated that the petitioner was a private candidate of Gauhati University at the time of appearing the M.A. examination and he used to take leave from the school authority to appear in the exams of his master degree and at that relevant point of time, the school authority did not raise any objection of granting leave to appear in the master-degree examination and during 90's large number of people including teachers used to appear in the M.A. exam as private candidate and no school authority have ever raised any objection rather as a routine manner such teachers used to appear in the master degree exams and passed out and almost all of them have already retired after getting benefit. Further, this issue is no longer res-integra as this Court has already decided this issue in Tankeswar Nath –vs.- State of Assam, W.P.(C)/ 5419/2023 and many other similar judgments.

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7. Mr. M.H. Choudhury, the learned Senior Counsel for the petitioner referring to the Annexure ‘D’ the seniority list, of the teachers of the petitioner school, submits that the petitioner is the senior most teacher and this has not been denied by the respondents. He also submits that he possess all requisite qualification for being appointed as regular Principal of the Higher Secondary School by possessing the requisite qualification of M.A. and B.Ed. degree and

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the experience of teaching as Graduate teacher. But despite that the respondent authorities had deprived him from holding the charge of In-Charge Principal of the School on irrelevant grounds. Referring to the stand taken by the respondent authority Mr. Choudhury submits that when the vacancy arose the petitioner was only 56 years old and that acquiring a degree without permission of the authority is already settled by this Court in several decision of this Court and as such denying the legitimate claim of the petitioner is illegal and arbitrary and therefore,, he has contended to allow the petitioner to hold the charge of In-Charge Principal of the said School by setting aside the impugned orders.

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8. Per contra, Ms. Musahary, learned standing counsel for the state respondents, advanced two fold arguments. Firstly, she submits that the date of birth of the petitioner is 01.06.1967 and as such on 01.01.2025, he had attained 57 years 7 months and as per Rule 12(3)(v) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018, the age of the candidates must not be more than 57 years as on the 1^st January of the year of recruitment. Secondly, she submits that petitioner had acquired M.A degree in 1995 from Gauhati University during his service period without taking prior permission from the Appointing Authority which does not fulfill Rule 13 of the Assam Civil Services (Conduct) Rules 1964, which provides that no Govt. Servant while in Government Service shall join or attend any educational institution for the purpose of preparing himself for or shall appear at an examination of a recognized Board or University without obtaining prior/previous permission from the appointing authority. And for the aforesaid circumstances the petitioner could not be appointed as In-Charge Principal of Dakshinpat Higher Secondary School. Therefore, it is contended to dismiss this petition.

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9. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also perused the order dated 03-10-2023 (Annexure-F), passed by the Director of Secondary Education, Assam and order dated 10-04-2024, (Annexure-I) passed by the Inspector of Schools, NDC Nagaon, and the seniority list of teachers of Dakshinpat Higher Secondary School, dated 14.08.2023. Also gone through the Rule 12 (3) (V) of the Assam Secondary Education (Provincialised Schools) Service Rule, 2018 and the decision of this Court in the case of Tankeswar Nath (supra).

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10. From the contentions being made in the respective pleadings of the parties and also from the submissions of learned counsel for both the parties, following facts and circumstances emerges:-

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(i) As per Annexure ‘D’ i.e. the seniority list, of the teachers of the Dakshinpat Higher Secondary School, prepared by the then Principal of the said school, which was submitted on 14-08-2023, the name of the petitioner appeared at serial No. 1 and as such, the petitioner is the senior most teachers of the said school.

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(ii) The petitioner has possessed the requisite educational qualification of M.A. and B.Ed. for being appointed as Principal of a Higher Secondary School.

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(iii) The post of Principal fell vacant on 31.08.2023, after retirement of the erstwhile In-charge Principal, namely, Sri Bhubaneswar Saikia.

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(iv) The Inspector of Schools, Nagaon was allowed to hold the charge of InCharge Principal of Dakshinpat Higher Secondary School, vide

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impugned order dated 03-10- 2023.

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(v) The age of the petitioner, as on 03-10- 2023, on which the aforesaid Inspector of Schools was given charge of the in-charge Principal of aforesaid Higher Secondary School, was 56 years 4 months 2 days.

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(vi) As on 01.01.2025, the age of the petitioner is 57 years 7 months.

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(vii) The petitioner had acquired M.A degree in 1995 from Gauhati University during his service period without taking prior permission from the Appointing Authority as required by Rule 13 of the Assam Civil Services (Conduct) Rules 1964, which states that- "No Govt. Servant while in Government Service shall join or attend any educational institution for the purpose of preparing himself for or shall appear at an examination of a recognized Board or University without obtaining prior/previous permission from the appointing authority".

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(viii) As per Rule 12(3)(v) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 (Rules 2018 hereinafter), the age of the candidates must not be more than 57 years as on the first January of the year of recruitment.

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11. There is no dispute about the aforesaid factual and legal propositions. It is also not in dispute that the vacancy of the Principal of Dakshinpat Higher Secondary School, arisen on 31.08.2023, after retirement of the erstwhile Principal In-charge, namely, Sri Bhubaneswar Saikia. But, in that year the case of the petitioner was not considered and no reason is assigned in the affidavit in opposition filed by the respondent No.2. The age of the petitioner as on 03-102023, on which the Inspector of Schools, Nagaon was given charge of the in-

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charge Principal of aforesaid Higher Secondary school, was 56 years 4 months 2 days. Had the case of the petitioner been considered in that year i.e. 2023, the bar of Rule 12(3)(v) of the Rules 2018, would not stand in the way of appointing the petitioner as In-Charge Principal. Rule 12(4) provides that the Government in the Secondary Education Department shall issue Office Memorandum with detail recruitment procedure for the post of Principal. Rule 12(5)(i) provides that before the end of each year, the Inspector of Schools, who is the Member Secretary of the District Selection Committee constituted under Rule 12(6), shall make an assessment of the number of vacancies to be occurred in the cadres of Principal and to be filled up in the next year within the district. This being the position, the ‘year of recruitment’ as contemplated under Rule 12(3)(v) of the Rules 2018 in this case cannot be the year 2025 and since the Rule provides for initiation of the process in the previous year and since the vacancy herein arose in the year 2023, itself then the ‘year of recruitment’ is the year in which the vacancy arises.

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12. Therefore, this ground to deny the petitioner to hold the charge of InCharge Principal failed to withstand the legal scrutiny. Even if the recruitment year spelled over to the next year, i.e. 2024, then also on 1^st of January, 2024, the age of the petitioner would have been 56 years, 7 months and 2 days. The respondent No. 2 cannot interpret the recruitment year as provided in the Rule 12(3)(v) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018, as per its whim and caprice, so as to deny the legitimate claim of the petitioner, having slept over the matter for more than two years.

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13. Further, Rule 13 of the Assam Civil Services (Conduct) Rules 1964, was a subject matter of discussion in number of cases including in the case of

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Tankeswar Nath (supra). In the said case, after examining the provisions of Rule 13 of the Assam Civil Services (Conduct) Rules, 1965, and agreeing with the decision of this Court in the case of Mouchumi Saharia in I.A. (C) 2615/2023 dated 28.09.2023, concluded as follows:

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7. On application of the decision of this Court in the case of Mouchumi Saharia/supra); to the issues arising in the present case, it is clear that the petitioner having been validly granted a Masters Degree in Assamese and the said Degree having been obtained from an institution recognized by the University Grants Commission, the respondent authorities do not have the jurisdiction and authority to invalidate the said Degree obtained by the petitioner and such invalidation cannot be done even impliedly.

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The effect of the denial of the benefits of holding the charge of in-charge Principal of the said school to the petitioner inspite of being the senior-most Teacher of the school, amounts to an invalidation of the Degree obtained by the petitioner in Krishna Kanta Handique State Open University, which is impermissible.

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8. Accordingly, the order, dated 30.03.2023, having been issued only on the ground that the petitioner was not eligible to hold the charge of the post of Principal, Sarthebari Higher Secondary School, Sarthebari, on account of he having obtained his M.A. Degree without prior permission from the competent authorities for undergoing such a course; stands interfered with.

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9. The M.A. Degree acquired by the petitioner having been so acquired from a recognized University; the said Degree is otherwise valid and acceptable in law and accordingly, the petitioner having fulfilled the eligibility criteria as mandated for recruitment to the post of principal of the school in question, under the provisions of Rule 12(3) of the said Rules of 2018; a legal right has accrued to the petitioner to hold the charge of the post of Principal, Sarthebari Higher Secondary School, Sarthebari."

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14. Applying the ratio of the decision of this Court in the case of Tankeswar Nath(supra), it could be held that the M.A. Degree, so acquired by the petitioner from a recognized University, as a private candidate, is otherwise valid and acceptable in law. And that being so, the petitioner is held to have fulfilled the eligibility criteria as mandated for recruitment to hold the charge of the post of In-charge Principal of Dakshinpat Higher Secondary School under the provisions of Rule 12(3) of the Assam Secondary Education (Provincialized Schools) Service Rules, 2018.

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15. The petitioner being the senior most teacher, a legal right has accrued to the petitioner to hold the charge of the post of In-charge Principal of Dakshinpat Higher Secondary School.

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16. Accordingly, the matter stands remanded back to the Director, Secondary Education Department, Assam, who shall now pass appropriate formal order allowing the petitioner to hold the charge of the post of In-charge Principal of Dakshinpat Higher Secondary School.

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17. The exercise mentioned above, has to be carried out within a period of three weeks from the date of receipt of certified copy of this judgment and

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order. The petitioner shall obtain a certified copy of this judgment and order and place the same before the respondent No.2 within a period of one week from today.

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18. The parties have to bear their own costs.

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JUDGE

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Sheikh Abdullah v. the State of Assam and 3 Ors.

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