Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 278 (GAU)

Gokul Mohan Hazarika v. State of Assam

2003-06-26

P.G.AGARWAL

body2003
P.G. AGARWAL, J.— On 7.3.84 the State of Assam submitted requisition before Assam Public Service Commission for short, the Commission, for recruitment of 30 posts of Assam Civil Service (Class-I) and Assam Civil Service (Class-II), hereinafter, referred as ACS-I and ACS-II. 2. An advertisement was issued by the Assam Public Service Commission and pursuant to the said advertisement, the petitioners before us participated in the said selection process. The Commission sent a recommendation of 90 candidates for ACS-I and 120 candidates for ACS-II. Thereafter, the State of Assam, sat over the said -L, recommendation and in the meantime, the eligibility criteria and the promotional quota of the ACS-I and ACS-II were amended. Subsequently, the respondent State promoted as many as 129 officers belonging to ACS-II to ACS-I and they are being arrayed as respondents in the present writ petition. The promotion Order was issued vide Notification dated 11.9.86. Thereafter on 25.10.86 the State respondent appointed as many as 45 persons including the writ petitioners in ACS-I. 3. In this writ petition, the petitioners have challenged the order of promotion dated 11.9.86 on the following counts:- (1) The promotion from ACS-II to ACS-I was made beyond the permissible quota. (2) The vacancies occurred in the year 1984 and the rules were subsequently changed in the year 1986 and hence, according to the petitioners, the vacancies of 1984 are to be filled up as per the rules of 1984 and the amended rules of 1986 should not be made applicable. (3) The petitioners were placed below all the 129 promotees but according to them, they should be placed just below the 45 promotees as per the relevant rules. The petitioners have, therefore, prayed for quashing of the gradation list dated 1.1.93 and for correcting the same by giving due seniority to the petitioners. 4. The broad facts of the case as stated above, are not in dispute. It may be mentioned here that in the meantime that is, during the pendency of the writ petition, a number of respondents had retired from services and accordingly the names of respondents Nos. 4,5,6,7,8,9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,35, 36, 37, 38, 39, 40, 41,42,43,44,46,47,48, 72, 116 and 118 were deleted. 5. In this writ petition, the dispute is between the direct recruits and the promotees. 4,5,6,7,8,9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,35, 36, 37, 38, 39, 40, 41,42,43,44,46,47,48, 72, 116 and 118 were deleted. 5. In this writ petition, the dispute is between the direct recruits and the promotees. It is submitted that the pre-amended rules provided promotion ratio of 50% that is, direct recruits 50% and promotion 50% with a rider that in order to be eligible, the promotees have to complete eight years of service in ACS-II and the selection committee was to be chaired by the Commission Chairman. The eligibility criteria was diluted to five years and the quota was never adhered to. It is alleged that in between 1964 and 1986 only 36% of the posts were filled up by direct recruits and the rest 64% were filled up by promotion. The matter relating to Quota Rule was considered by this court in the case of Tripura Bar Association, Agartala- Vs-State of Tripura & others, reported in (1992) 1 GLR 94 and this court held as follows:- "(1) Quota Rule has to be strictly enforced and it is not open to the authorities to middle with it on the ground of administrative exigencies. (ii) Quota Rule is linked up with the seniority Rule unless the quota rule is strictly observed in practice it would be difficult to hold the Seniority Rule and Seniority Rule cannot be allowed to override the recruitment quota rules, (iii) In the case of filling up vacancies in the service from two services on the basis of quota, fixation of inter se seniority in the Gradation list has to be worked out on the basis of quota. (iv) 'Date of appointment' appearing in Rule 3 of the 'Seniority Rules' should be the date of substantive appointment as per provision of Rule 11 of the Service Rules. (v) If the promotions are made to vacancies in Gr. (iv) 'Date of appointment' appearing in Rule 3 of the 'Seniority Rules' should be the date of substantive appointment as per provision of Rule 11 of the Service Rules. (v) If the promotions are made to vacancies in Gr. I in excess of the promotional quota, that is, in excess of 75% of the permanent authorised strength, such promotees cannot have right to hold the promotional post unless the vacancies fall within their quota and if the promotees occupy any vacancies which are within the Quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota and the promotees who were occupying the vacancies within the quota of direct recruits, will either be reverted or will be absorbed in the vacancies that subsequently arise in their quota." 6. It is submitted that for violation of the quota rule some of the direct recruits of 1980 batch had approached this Court and certain reliefs were granted to them. There is also no dispute at the Bar that as per the rule, if a promotee and a direct recruit is appointed during the same year, the promotee will be treated as senior to the direct recruit. Rule 19 of the Assam Civil Service (Class I) ARules, 1960 reads as follows:- "19. Seniority- (1) The seniority of members of the service shall be determined according to the order of merit in the list prepared under sub-Rule (5) or Rule 5 or approved under Rule 8, if the members join their appointments within 15 days of the receipt of the order of appointment. Provided that in case a member is prevented from joining within the said period of 15 days by .circumstances of a public nature or for reasons beyond his control the Governor may extend it for a further period of 15 days. If the period is not so extended and the member of the service joins within the period extended under sub-rule (2) of Rule 15, his seniority shall be determined in accordance with the date of joining: Provided further that the members of the service recruited in a year under clauses (b) and (c) of Rule 4 shall be senior to members recruited in the same year and in the same batch under clause(a) of Rule 4. (2) The members of the service recruited on the same date under sub-rule(l) of Rule 4 shall be senior to the members of the service recruited under sub-rule (2) of Rule 4. (3) The members of the Service recruited on the same date under sub-rule(l) of Rule 4 shall be senior to the members of the Service recruited under sub-rule(2) of Rule 4." 7. Vide Notification dated 21.7.86, the Assam Civil Service (Class I) Rules were amended to provide unfettered discretion to the Government in the matter of fixing quota' for promotion. The amended provision reads as follows:- Provided that the member of persons recruited under Clause (b) in any calender year shall be such as may be determined by the Governor, provided further that the persons recruited under clause(c) shall not in any year exceed two and shall not at any time exceed 5 percent of the total strength of the Cadre." 8. It may be mentioned here that the two civil services-ACS-I and ACS-II were merged in the year 1989 and hence, the quota rule has become infructuous. 9. In this writ petition, the main thrust of the petitioner's contention is that the vacancies against which the petitioners were appointed occurred in the year 1984 and even the selection was completed in the year 1986 itself. The results were published on 27.6.86. The amended rules provide power to the Governor to determine the quota of promotion vide Notification dated 21.7.86 (Annexure-A). It was stated that the vacancies which arose prior to the amendment of the rules should be governed by the old rules unless the amended rules so provide. It was further submitted that the rules must be held to be prospective and the petitioners have placed reliance on a decision of the Apex Court in the case of Y. V. Rangaiah and others- Vs-J. Sreenivasa Rao and others, reported in AIR 1983 SC 852 wherein the Apex Court held as follows:- "The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the .post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the statewide basis and therefore, there was no question of challenging the new rules. It is admitted by counsel for both the parties that henceforth promotion to the .post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." 10. In the case of P. Mahendran- Vs-State of Karnataka, reported in (1990) 1 SCC 411 , the Apex Court held that after the commencement of the selection process, if any amendment of the rules is made proportionately changing the eligibility criteria, the amended rules would not affect the selection and appointment as the selection process which had already commenced had to be completed in accordance with law as it stood at the commencement of the selection. The rule of law laid down by the Apex Court was followed by this court in the case of Sushil Kumar Ghosh-Vs-State of Assam, reported m 1992(2) GLJ 503. 11. The Apex Court in a later decision in the case of Dr. K. Ramala-Vs-Dr. S. Suryaprakash Rao, reported in Judgment Today 1997(2) SC 80 had made certain departure from the ratio of law laid down in the case of Y. V. Rangaiah (supra). It was stated that where the Government or the authority takes a coconscious decision not to make any appointment till the amendment to the rules and thereafter amend the rules in those cases, the amended rules will govern the matter as the person had not acquired any right for being promoted or appointed. In this case, we find that although the process of direct recruitment was introduced in the year 1984 itself, the Government was sleeping over the matter and considering the question of the merger of ACS-I and ACS-II services and as a first steps, they wanted to do away with the quota fixed in the rule and accordingly the relevant provisions were amended to leave it to the discretion of the Government to fix the quota for promotion. Thereafter, the promotions were made and the remaining vacancies were filled up by direct recruitment. Thereafter, the promotions were made and the remaining vacancies were filled up by direct recruitment. It may be mentioned that subsequently both the classes were amalgamated and at present there is no dispute as regards the promotees vis-a-vis the direct recruits. We also find that because of the conscientious decision of the State Government to raise the promotion quota of ACS-II officers, the appointments were not made or held up and after making the necessary amendment to the rules, the appointments were made. The rule as it stood earlier also provided that in case of appointment during the same year, the direct recruits should be placed below the promotees. The earlier decision of this court referred to by the petitioners is of no help to the petitioners as in those cases, the repealed rules governed the matter and in the absence of any provision the benefit was extended to the direct recruits. 12. In the result, we find no merit in this writ petition and the writ petition stands dismissed.