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2006 DIGILAW 9 (GAU)

Jagat Ram Barthakur v. State of Assam

2006-01-03

B.SUDERSHAN REDDY, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B. Sudershan Reddy, C.J. 1. The appellant is the unsuccessful writ petitioner in WP(C) No. 6223/03. This appeal is preferred against the order dated 21.9.2004 passed by the learned Single Judge of this Court in the said writ petition. 2. The appellant herein filed the writ petition challenging the paragraph 5 of the impugned Executive Order of the Governor notified on 3.12.1988. The Executive Order is known as "Assam Geology and Mining (Recruitment and Conditions of Service) Order, 1988". The said order was made regulating the recruitment and conditions of services of the persons appointed to the posts under the Geology and Mining Directorate pending finalization of Assam Geology and Mining Service Rules to be framed under the provision to Article 309 of the Constitution of India. 3. Shorn of all the details, the case of the appellant as is evident from the facts stated in the writ petition is that he was appointed in the post of Chemist in 1970 in the Department of Mines and Minerals of the Government of Assam and thereafter promoted to the post of Senior Chemist in 1975. Having been further promoted as the Deputy Chief Chemist in 1991, he is working in the same post under the Directorate. 4. The case set up by the appellant is that instead of framing the Rules, the Respondents had chosen to resort to notify the impugned Executive Order regulating the recruitment and conditions of services of the persons appointed to the posts under the Geology and Mining Directorate only with a view to deprive of his legitimate right for consideration of his case for further promotion as Director of Geology and Mining. That according to paragraph 5(1) of the impugned Executive Order, the post of Director shall be filled up by promotion from the cadre of Additional Director. According to paragraph 5(2), the post of Additional Director shall be filled up by promotion from amongst the cadres of Joint Directors and/or equivalent posts having academic qualification prescribed for the post of Director. 5. That according to him, the post of Deputy Chief Chemist from the Analytical Unit is the equivalent post of Joint Director and as the head of the Analytical Unit, drawing same pay scale as that of the Joint Directors, the Chief Geologist and the Chief Drilling Engineer. 5. That according to him, the post of Deputy Chief Chemist from the Analytical Unit is the equivalent post of Joint Director and as the head of the Analytical Unit, drawing same pay scale as that of the Joint Directors, the Chief Geologist and the Chief Drilling Engineer. As an equivalent post, the Chief Chemist is also entitled to promotion to the post of Additional Director and thereafter to the post of Director. The case set up by him is that the respondents in an arbitrary manner fixed the qualification for the post of Director by prescribing Post Graduate Degree in Geological Sciences/Applied Geology/Geophysics or Degree in Mining Engineering from a University or Institution recognized by the Government. It is submitted that the Executive Order deliberately omitted the qualification of Post Graduate Degree in Chemistry prescribed for the post of Deputy Chief Chemist and as a result, his case could not be considered for further promotion. It is under those circumstances, the petitioner challenged the constitutional validity of paragraph 5(1) and 5(2) as well of the impugned Executive Order dated 3.12.1988. 6. The learned Single Judge summarily disposed of the writ petition under the mistaken impression as if the Executive Order were the rules framed according to which the case of the appellant herein for his further promotion could not be considered. The learned Judge summarized the grievances of the appellant herein in the following manner: The grievance of the petitioner is that till 1988 there was no rules and as such competition was open but after notifying the 1988 rules, there was no chance of promotion of the petitioner and as such it should be struck down as it will adversely affect the promotion avenue of the petitioner. 7. The learned Judge took the view that framing of rules in realm of policy decision and until such policy decision is shown to be arbitrary or discriminatory the Court cannot interfere with such policy decision. The learned Judge further held that though the rules were framed in 1988, the appellant herein did not challenge the said Rules. The learned Judge proceeded on the assumption as if Geology and Mining Service Rules, which are notified in 1988, were applicable to the facts situation at hand. Those rules do not deal with the post of Director under the Geology and Mining but deal with the subordinate posts. The learned Judge proceeded on the assumption as if Geology and Mining Service Rules, which are notified in 1988, were applicable to the facts situation at hand. Those rules do not deal with the post of Director under the Geology and Mining but deal with the subordinate posts. We find some force in the submission of the learned Counsel for the appellant that the leaned Judge committed an error in considering the case of the appellant in proper perspective. The learned Judge ought to have gone into the question as to whether the impugned paragraphs 5(1) and 5(2) of the Executive Order suffer from any illegality. The Executive Order of the Government issued in the name of the Governor cannot be equated with the rules framed in exercise of the powers conferred under proviso to Article 309 of the Constitution of India. 8. The parameters of judicial review in considering the vires of statutory rules are totally different in comparison to that of parameters of judicial review while evaluating the Executive Order issued by the Government in the name of the Governor. The appellant herein specifically alleged mala fides by contending that such Executive Order was issued only in order to deprive of his legitimate right to be considered for further promotion to the post of Director. No statutory rules as such can be struck down on the ground of mala fide, but the Executive Order can be struck down on that ground. It is imperative to examine the issue on merit as to whether the Executive Order as such has been issued only in order to deprive the appellant herein for consideration of his further promotion to the post of Director. In the circumstances, we find some merit in the submissions made by the leaned counsel for the appellant that the learned Judge failed to consider the issue in its proper perspective. 9. But the question that falls for our consideration is whether the appellant herein is entitled to get any relief at this stage? The learned Counsel for the appellant fairly submits that the appellant herein is retiring from service on attaining the age of superannuation. Even if the impugned Executive Order is struck down, no positive direction as such can be issued directing the respondents to promote the appellant herein as Director of the Department. The learned Counsel for the appellant fairly submits that the appellant herein is retiring from service on attaining the age of superannuation. Even if the impugned Executive Order is struck down, no positive direction as such can be issued directing the respondents to promote the appellant herein as Director of the Department. In the circumstances, we are not inclined to express any opinion as regards the constitutional validity of the impugned Executive Order. Learned Counsel for the appellant submits that the appellant would get mental satisfaction if appropriate direction is issued as prayed for though he may not get any substantial benefit out of the directions as such. We find it difficult to agree with the submission made by the learned Counsel for the appellant inasmuch as such a course is impermissible in law. It is well settled that this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India does not issue any futile writs. It is equally well settled that it does not undertake any academic issues and pronounce its views on such academic issues. 10. For the aforesaid reasons, we are not inclined to interfere with the impugned Executive Order at this stage. The appeal shall stand dismissed without any order as to costs. But we make it clear that we have not expressed any opinion as regards the constitutional validity of the impugned Executive Order issued by the respondent in the name of the Governor. Appeal dismissed