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2005 DIGILAW 502 (GAU)

Sohrabuddin Ahmed v. State of Assam

2005-07-01

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. The writ Petitioners, who are 14 in number, have assailed the validity of Rules 13 and 14 of the Assam Accounts Service Rules, 1963, as amended by the amendment Rules of the year 2002. The actions of the Respondents in making promotion to the post of Accounts Officer on the basis of the list of empanelled candidates prepared on 07.10.97 is the other aspect of the challenge in the present writ petition. 2. The facts on which the aforesaid challenge is made may briefly be noticed at the outset. An advertisement was issued by the Assam Public Service Commission on 17th February, 1995 regarding the holding at a departmental promotion examination for filling up of approximately 50 number of posts of Accounts Officer in the Assam Accounts Service. The Petitioners, who were/are holding the posts of Deputy Accounts Officer, along with other candidates, participated in the departmental promotion examination which was held on different dates in the month of May, 1996. On the basis of the examination held, a list of empanelled candidates, in order of merit, was published by the Commission on 7th October, 1997. A total number of 163 candidates including the Respondent No. 3 to 10 (subsequently impleaded) were included in the aforesaid list of empanelled candidates. The writ Petitioners, it must be noticed at this stage, did not qualify in the departmental promotion examination and as such their names were not included in the list. The aforesaid list having been operated upon for appointment in the post of Accounts Officer beyond the posts specified in the advertisement and the Government having made clear its intention to act on the list until it is exhausted, the said action has been put to challenge in the present writ application. The provisions of Rule 13 of the Assam Accounts Service Rules 1963 as amended in the year 2002 making the Assistant Accounts Officers eligible to sit in the departmental promotion examination for promotion to the post of Accounts Officer along with the Deputy Accounts Officers has been challenged on the grounds of infringement of the Fundamental Rights of the Petitioners under Articles 14 and 16 of the Constitution. Similarly, the provisions of Rule 14 of the Rules, as amended in the year 2002, contemplating operation of a panel until it is exhausted has also been challenged as being violative of the rights of the Petitioners under Articles 14 and 16 of the Constitution. 3. I have heard Mr. A.M. Mazumdar, learned senior counsel for the writ Petitioners, Mr. K.C. Mahanta, learned Govt. Advocate, Assam and Mr. G.K. Bhattacharyya, learned senior counsel appearing for the private Respondents No. 3 to 10. 4. The arguments advanced by Mr. Mazumdar, learned Counsel for the writ Petitioners have been short and precise. It is argued that the operation of the list of empanelled candidates beyond the vacancies advertised or available on the relevant date and until the said list is exhausted is not contemplated under the Rules in force at the relevant point of time i.e. prior to the amendment made in the year 2002. Mr. Mazumdar has further argued that in the present case, the list of empanelled candidates prepared on 07.10.97 has not only been acted upon to fill up the vacancies in the post of Accounts Officer beyond the number advertised; the Governments intends to act on the said list until the same is exhausted. Such action on the part of the State, according to Mr. Mazumdar, are not consistent with the rights guaranteed to the Petitioners under Articles 14 and 16 of the Constitution inasmuch as by the time the list of empanelled candidates dated 07.10.97 is exhausted, all the Petitioners would have retired without being afforded another opportunity of qualifying in the departmental promotion examination for promotion to the post of Accounts Officer Arguing further, Mr. Mazumdar has contended that the post of Assistant Accounts Officer is a feeder post for promotion to the post of Deputy Accounts Officer. Yet, by the amendment to Rule 13 made by the amendment Rules 2002, both the posts of Assistant Accounts Officer and Deputy Accounts Officer had been made feeder posts for the promotion to the post of Accounts Officer. The aforesaid actions are again contended to be in derogation of the Fundamental Rights of the Petitioners under Articles14 and 16 of the Constitution. Lastly, Mr. The aforesaid actions are again contended to be in derogation of the Fundamental Rights of the Petitioners under Articles14 and 16 of the Constitution. Lastly, Mr. Mazumdar, learned Counsel for the Petitioners, has contended that Rule 14 having empowered the Government to act on a list of empanelled candidates till such time that the said list is exhausted and further having provided that though subsequent selections can be held, the list of candidates empanelled on basis of such subsequent selections cannot be operated till all the candidates in the earlier lists have been offered appointment, Rule 14 must be declared by the Court to be constitutionally invalid on grounds of violation of the Fundamental Rights of the Petitioners under Articles 14 and 16 of the Constitution. 5. The arguments advanced on behalf of the Petitioners have been resisted by Mr. Mahanta, learned Govt. Advocate as well as Mr. Bhattacharyya, learned Counsel appearing for the private Respondents No. 3 to 10. Learned counsels have argued that what is contemplated under the Rules as originally enacted and after the amendments made in the year 2002 is the holding of a departmental promotion examination and not a competitive examination for purposes of promotion to the post of Accounts Officer. Learned counsels have further argued that what is contemplated under the Rules is the preparation of a list of empanelled candidates and not a select list. It is the further argument of the learned counsels for the Respondents that the candidates empanelled on the basis of a departmental promotion examination must be necessarily understood to have a valid and subsisting right of appointment which right does not get obliterated with the passage of time. Therefore, according to the learned counsels for the Respondents, unlike a select list, a list of empanelled candidates does not lose its force on the expiry of any fixed period of time or upon holding of a fresh departmental promotion examination. This being the position in law, what was implicit in the Rules has been made explicit by the amendment of Rule 14 in the year 2002. It is on the aforesaid basis that the actions of the Government in seeking to continue to act on the basis of the list dated 07.10.97 and the provisions of Rule 14 as amended in the year 2002, has been sought to be defended and justified. It is on the aforesaid basis that the actions of the Government in seeking to continue to act on the basis of the list dated 07.10.97 and the provisions of Rule 14 as amended in the year 2002, has been sought to be defended and justified. In so far as the provisions of Rule 13 of the Rules is concerned, the argument advanced by the learned counsels for the Respondents is that the equivalence of the posts of Assistant Accounts Officer and Deputy Accounts Officer for promotion to the post of Accounts Officer was made for the first time in the year 1991 and continued by the amendment made in the year 1996. Rule 13 as amended in the year 2002, has only reiterated the prevailing position. The Petitioners have not challenged the equivalence of the two posts which was made in the year 1991 or 1996. In any case, it is contended by the learned counsels for the Respondents that the aforesaid actions were prompted by the need of providing more avenues of promotion to the Assistant Accounts Officers as the channel of promotion from the said post to the post of Deputy Accounts Officer was severely restricted in view of the availability of a limited number of posts of Deputy Accounts Officer in the cadre. Learned counsels for the Respondents have argued that the equivalence made, does not infringe the Fundamental Rights of the Petitioners under Articles 14 and16 of the Constitution inasmuch as the Petitioners still continue to be eligible for consideration for promotion to the post of Accounts Officer. 6. Having noticed the broad features of the arguments advanced on behalf of the rival parties and before proceeding to analyze the same, it would be apposite, at this stage, to notice the relevant provisions of the Rules as originally enacted and amended from time to time. The Assam Accounts Service Rules 1963 was earlier known as the Assam Subordinate Accounts Service Rules. By an amendment made with effect from 25th March, 1991, the word' Subordinate' was omitted and the Rules came to be known as the Assam Accounts Service Rules, 1963. Under Rule 3 of the Rules as originally enacted, the service consisted of the following cadres: 1. Divisional Accountants. 2. Junior Divisional Accountants; and 3. Assistant Divisional Accountants. By an amendment made with effect from 25th March, 1991, the word' Subordinate' was omitted and the Rules came to be known as the Assam Accounts Service Rules, 1963. Under Rule 3 of the Rules as originally enacted, the service consisted of the following cadres: 1. Divisional Accountants. 2. Junior Divisional Accountants; and 3. Assistant Divisional Accountants. By an amendment to the Rules made with effect from 25th March, 1991, Rule 3 was amended and so far as the present case is concerned, what will be important is to notice the change of the nomenclature of the cadres as follows: (i) Accounts Officer; (ii) Deputy Accounts Officer; and (iii) Assistant Accounts Officer By the further amendment made with effect from 30.07.2003 by the amendment Rules of 2002, the cadre of Assistant Director of Accounts was also included. 7. So far as Rule 13 is concerned, it must be noticed that under Rule 13 as originally enacted, 75% of the vacancies available in the cadre of Divisional Accountant (Accounts Officer) were to be filled up by promotion from Junior Divisional Accountant (Deputy Accounts Officer). Under Sub-Rule 2 of Rule 13 as originally enacted, it is only the Junior Divisional Accountants who were eligible to appear in the departmental promotion examination subject to completion of 3 years of service on the first day of the year of recruitment. Sub-rule 3 of Rule 13 as originally enacted would also be of significance. The departmental promotion examination contemplated by sub-rule 3 was to be conducted by the Public Service Commission at such intervals that the appointing authority may determine. The Commission was required to prepare a list of candidates who had qualified in the examination in order of merit and forward the said list to the appointing authority. Promotion from the list so made, prepared and forwarded, was required to be made subject to availability of vacancies. Rule 13 as originally enacted was first amended with effect from 25.03.91 by providing in Sub-rule 2 that Deputy Accounts Officer or Assistant Accounts Officer who had completed 5 years of service in the respective cadres or both combined, shall be eligible to sit in the departmental promotion examination. The posts of Deputy Accounts Officer and Assistant Accounts Officer by virtue of the amendment made to Rule 3 with effect from 25.03.91, as already noticed, were substituted for the post Junior Divisional Accountants and Assistant Divisional Accountants. The posts of Deputy Accounts Officer and Assistant Accounts Officer by virtue of the amendment made to Rule 3 with effect from 25.03.91, as already noticed, were substituted for the post Junior Divisional Accountants and Assistant Divisional Accountants. Sub-rule 2 was again amended in the year 1996 by providing a promotional avenue to Assistant Accounts Officer to the post of Deputy Accounts Officer. As before, the holders of both the aforesaid two posts remained eligible to sit in the departmental promotion examination for promotion to the post of Accounts Officer but the period of qualifying service was reduced from 5 years to 2 years. Sub-rule 3 of Rule 13 as originally enacted, it must be noticed, did not undergo any significant transformation in the course of any of the amendments. By the amendment Rules of 2002 effective from 30.07.2003, the post of Accounts Officer, which was earlier to be filled up by promotion and direct recruitment in the proportion of 75% : 25% was made exclusively a promotional post. The Amendment Rules of 2002 did not effect any further significant amendment of Rule 13 except that sub-rule 3 as originally enacted was re-numbered as Sub-rule 4. 8. Rule 14 of the Rules as originally enacted provided for direct recruitment on the basis of a competitive examination for filling up 25% of the vacancies in the post of Divisional Accounts (Accounts Officer). Upon amendment of Rule 13 making the said post entirely a promotional post with effect from 30.07.2003, Rule 14 was substituted and Sub-rule 3 of the substituted Rule 14 provided that the list of departmental candidates for promotion, as prepared by the Public Service Commission, is to remain valid till it is completely exhausted. Sub-rule 4 of substituted Rule 14 further provides that though subsequent lists maybe prepared, no appointment will be made from such subsequent list until all candidates of the earlier list(s) are offered appointment. 9. Having noticed the provisions of the Rules as originally enacted and amended from time to time, the Court may now embark upon the required process of scrutiny of the merits of the rival contentions. The list of empanelled candidates prepared on 07.10.97, being before the substituted Rule 14 in its present form, must necessarily be governed by the provisions of Rule 13(3) as it then existed. The list of empanelled candidates prepared on 07.10.97, being before the substituted Rule 14 in its present form, must necessarily be governed by the provisions of Rule 13(3) as it then existed. As already noticed under Rule 13(3), the list of candidates who have qualified in the departmental promotion examination was required to be prepared by the Commission in order of merit. The Commission was thereafter required to forward the same to the appointing authority and the appointing authority was required to make promotion from the list subject to availability of vacancies. The provisions of Rule 14 as introduced by the amendment Rules of 2002 providing for continuity of the list of candidates till it is exhausted and further providing for appointment of candidates included in the subsequent lists only upon exhaustion of the earlier list(s) were not a part of the Rules on the date when the list dated 07.10.97 was prepared. The list dated 07.10.97 was prepared pursuant to the selection held in terms of the advertisement which had specified the number of vacancies to be available as 50 (approximately). The list prepared included 163 names. When the Rules in force did not specifically provide for continuity of the list till it is exhausted as has been provided by the amendment made in the year 2002, surely and certainly, the said list could not have been operated beyond the contemplated number of vacancies. The rights of the candidates included in the said list must be understood by the Court to be necessarily confined to the vacancies advertised and once the required number of vacancies had been filled up, any further operation of the list dated 07.10.97 could have been made only in derogation of the rights of the other eligible candidates including the Petitioners to a fair consideration for appointment in public service. This Court had noticed that it is the admitted case of the parties that the list dated 07.10.97 has been operated far beyond the vacancies advertised. The beneficiaries of the said action are not before the Court and in the facts and circumstances of the case in which such benefits have been conferred, this Court does not consider it appropriate to pass any orders which would have the effect of invalidating any such appointments already made. The beneficiaries of the said action are not before the Court and in the facts and circumstances of the case in which such benefits have been conferred, this Court does not consider it appropriate to pass any orders which would have the effect of invalidating any such appointments already made. But the State Government is directed to forthwith refrain from taking any further action on the basis of the list of empanelled candidates dated 07.10.97. 10. The continuation of the above discussion now in the context of the provisions of amended Rule 14 would both be convenient and in order. Rule 14 has provided that the list or empanelled candidates will remain valid till it is exhausted and all subsequent lists will be operated only after the earlier lists are exhausted. The Petitioners contend that the provisions of the aforesaid Rule 14 to be void, illegal and unconstitutional on the ground that the same infringes their rights guaranteed under Article 14 and 16 of the Constitution. The operation of a list of empanelled candidates beyond the number of vacancies which was in contemplation at the time of preparation of the list will certainly have the effect of impairing the Fundamental Rights of all eligible candidates to a fair consideration for appointment against such posts/vacancies. The list of empanelled candidates must have a reasonable nexus with the availability of vacancies on the relevant date or else an arbitrary power is capable of being usurped and exercised by determining the size of the list of empanelled candidates on individual perceptions. What if such a list is to include 140 persons in a situation where vacancies available on the relevant date is only 10? The hypothetical situation above would amply sum up the position that Rule 14 must be interpreted to allow the operation of the list of empanelled candidates till it is exhausted, meaning thereby, till the vacancies are exhausted. It is trite law that once the number of posts for which a list of candidates is prepared are filled up, the list itself cannot have any further life. On a careful analysis of the situation, the Court is of the considered view that Rule 14(3) and (4) must necessarily be read in the above light and if so read, there is no infirmity or constitutional impropriety in Rule 14. On a careful analysis of the situation, the Court is of the considered view that Rule 14(3) and (4) must necessarily be read in the above light and if so read, there is no infirmity or constitutional impropriety in Rule 14. In other words, this Court is of the view that Rule 14 has to be read down to mean a list of empanelled candidates to be valid only till such time that the vacancies proposed to be filled up are exhausted. 11. This would bring the Court to a consideration of the last issue in the case i.e. the validity of Rule 13. The posts of Assistant Accounts Officer and Deputy Accounts Officer had been brought at par for eligibility to sit in the departmental promotion examination for the first time by the amendment to the Rules made in the year 1991. The parity was continued by the amendment made in the year 1996. The Petitioners have not challenged any of the said amendments. The amendment made in the year 2002 with effect from 30.07.2003 has only maintained the aforesaid parity of the two posts for the limited purpose of eligibility to sit in the departmental promotion examination for promotion to the post of Accounts Officer. What should have been really challenged, if at all such a challenge can be perceived, are the earlier amendments made in the years 1991 and 1996. Even otherwise, clubbing together of two different posts or parity of two different posts for purposes of eligibility for consideration for promotion to a higher post, per se, will not be violative of Articles 14 and 16 of the Constitution. In the present case, the eligibility of the Petitioners for promotion to the post of Accounts Officer has not been affected; what may have been affected is the prospects or chances of promotion in view of the larger field for promotion that has been brought into effect by making both the Assistant and Deputy Accounts Officers to be eligible for promotion to the post of Accounts Officer. The extension of the field of promotion will not violate the Petitioners right of fair consideration which remains unaltered. In the above facts, the Court is of the view that the challenge made with regard to the validity of Rule 13 must be repelled by the Court. 12. The extension of the field of promotion will not violate the Petitioners right of fair consideration which remains unaltered. In the above facts, the Court is of the view that the challenge made with regard to the validity of Rule 13 must be repelled by the Court. 12. In view of the foregoing discussions, this writ petition shall stand answered in terms of the conclusions reached and recorded as above.