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2009 DIGILAW 131 (GAU)

Bhupen Kalita v. State of Assam

2009-02-24

HRISHIKESH ROY

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. A.K. Sharma, learned Counsel appearing for the Petitioner. Also heard Mr. P.S. Deka, learned Govt. Advocate who represents the Respondents. Mr. R.C. Saikia, learned Counsel appears for Respondent No. 4, who got himself impleaded in the present proceeding. 2. The Petitioner joined as a Statistical Assistant in the year 1989, under the Controller of Legal Metrology, Govt. of Assam and is before this Court to espouse a claim for promotion, to the post of Inspector. He is a science graduate with mathematics as his major subject. 3. By filing W.P.(C) No. 177/05, the Petitioner earlier approached this Court for appropriate direction for considering his promotion to the post of Inspector, Legal Metrology. The said writ petition was disposed of by this Court on 2.2.2006, directing the authorities to consider the case of the Petitioner for promotion. By the impugned order dated 18.12.2006 (Annexure IV), a purported consideration of the claim for promotion was made by the Respondent authorities. In the said order it was recorded that the Petitioner does not possess a Bachelor Degree in Science with Physics as one of the subject and accordingly he is not qualified to be promoted to the post of Inspector. It is also recorded that by virtue of the amendment made in Rule 11 of the Assam Weights and Measures Services Rules, 1981 (hereinafter referred to as 'the Service Rules, 1981'), the Petitioner cannot be promoted to the post of Inspector, on the ground of not having science degree with physics, as is prescribed by the Amendment Rules, 2000. 4. Under the Service Rules 1981, Post of inspector has been included in Clause III of Rule 3(c) and it is prescribed under Rule 5 that 25% of the posts in the Cadre of inspector are to be filled up by promotion. Rule 11(4) prescribes the eligibility criteria for being promoted to the post of inspector and it is provided there-under that a person working in the feeder post, holding a Bachelor Degree in Science would be eligible for promotion to the post of Inspector, 5. The Assam Standards of Weights and Measures (Enforcement) Rules, 1994 (hereinafter referred to as "the Enforcement Rules, 1994") came to be notified on 13.3.1995. The Assam Standards of Weights and Measures (Enforcement) Rules, 1994 (hereinafter referred to as "the Enforcement Rules, 1994") came to be notified on 13.3.1995. Under the Rule 20 of the Enforcement Rules, 1994 it is prescribed that no person shall be appointed as Inspector unless he "is a graduate of recognized University in Science with Physics as one of the subjects,....". Sub-rule 2 of Rule 20 of the Enforcement Rules, 1994 further prescribes that nothing in Sub-rule 1 shall apply to persons who have been working as Inspector or are eligible for promotion as Inspector before the commencement of this Rule. 6. The consequential amendment in the Service Rules, 1981 came to be incorporated by the Assam Legal Metrology Service (Amendment) Rules, 2000. By amending Rule 7, amendment in the Principal Rule 11 of the Service Rules, 1981 was made, whereby it is now prescribed under Sub-clause 'C' that only a Bachelor Degree holder in Science and Physics as one of the subjects... shall be eligible to be promoted to the post of Inspector against the promotional quota. 7. Mr. A.K. Sharma, learned Counsel appearing for the Petitioner submits that the Petitioner worked in the feeder post of Statistical Assistant since the year 1989 and became eligible for being considered for promotion under the Service Rules, 1981 as the Petitioner also fulfill the educational qualification prescribed under Rule 11(4)(c) of the Service Rules, 1981 as he possess a Bachelor Degree in Science. The learned Counsel contends that amendment to the Service Rules, 1981 brought about in the year 2000 comes into effect only from 31.12.2001 and since the Petitioner is claiming promotion to the posts meant for promotees which fell vacant prior to 31.12.2001, the further educational qualification prescribed in the Service Rules, 1981 by the amendment made in the year 2000 will not take away the accrued right of the Petitioner to get promotion. The learned Counsel also refers to the provisions of Section 20(2) of the Enforcement Rules, 1994 and submits that as the Petitioner has already became eligible for promotion to the post of inspector prior to commencement of the Enforcement Rules, 1994, the prescription of being a Graduate in Science with Physics as one of the subjects, would not affect the claim for promotion made by the Petitioner and the Petitioner can be considered eligible for promotion to the vacancies accruing in the cadre of Inspector, which occurred prior to the amendment in the Service Rules, 1981 brought into effect from 31.12.2001. 8. As the determination of right of the Petitioner to secure promotion depended on the applicability of the existing Rules or the Amended Rule, this Court by order dated 19.8.2008 directed the State Authorities to file an affidavit to show the precise number of vacancies in the cadre of inspector that were available on the date of amendment of the Rules (30.12.2001). 9. In pursuant to the said direction, an affidavit has been filed on 25.9.2008 by Dy. Secretary, Govt. of Assam, Food and Civil Supplies Department, wherein the vacancy position in the Cadre of Inspector for promotion is reflected as under: That total Nos. of vacancies in the cadre of Inspector of Legal Metrology required to be filled up by way of promotion on the date of amendment of Rules with effect from 31.12.2001 was 7. The Controller of Legal Metrology, Assam proposed the name of 14 incumbents including the Petitioner against said 7 vacancies on 19.9.2001 in order of Seniority. However, the State Level Empowered Committee of Personnel (B) Deptt. approved only (1) post in the said cadre of Inspector to be filled up by way of promotion from the ministerial cadre on 9.1.2002. 10. In the above affidavit of the Government, it is clearly indicated that on the date of amendment of the Service Rules, 1981, 7 vacant posts to be filled up by promotion were available and since only one person was given appointment against the available 7 posts, 6 more posts of inspector should be considered to be available, for filling up on promotion from the feeder cadre. 11. Mr. R.C. Saikia, learned Counsel appearing for the private Respondent disputes the correctness of the averments in the Govt. 11. Mr. R.C. Saikia, learned Counsel appearing for the private Respondent disputes the correctness of the averments in the Govt. Affidavit, whereby it is indicated that 7 posts of Inspector to be filled up by promotion were available, on the date of amendment of the Service Rules, 1981. But considering the fact that the affidavit dated 25.9,2008 has been filed in pursuant to a specific order passed by this Court on 19.8.2008,I am inclined to take the view that the vacancy position revealed through the State's Affidavit should be accepted, instead of accepting the submissions made by Mr. Saikia, who does not support his submission with any acceptable material for this Court to take a contrary view. 12. If this Court proceeds on that basis that at least 6 vacancies were available prior to the amendment of the Service Rules, 1981, brought into effect from 31.12.2001, it is well settled that such posts have to be filled up as per the unamended Rules and amendment of the Service Rules, 1981 brought about subsequently will not take away the accrued right of promotion. 13. Under the above circumstances, I am of the considered opinion that the impugned decision dated 18.12.2006, holding that the Petitioner cannot be promoted as the Petitioner does not fulfill the prescribed educational qualification laid down by the amended Rule, is not correct and the said decision is held to be incorrect. Accordingly it is considered appropriate to dispose of this writ petition by directing the Respondent authorities to once again consider the case of the Petitioner for promotion to any of the promotional posts of Inspectors, which become available and was vacant, prior to amendment of the Service Rules made on 31.12.2001. Such consideration of the Petitioner's claim for promotion should be made by the Authorities, without treating the Petitioner to be dis-qualified, because he does not have Physics as one of the subject, in the Science Degree that he otherwise possess. 14. Appropriate consideration for promotion of the Petitioner along with other eligible candidates in the feeder post, if any, would be expeditiously made and preferably within a period of 4 months from the date of receipt of a copy of this Court's order. 15. Mr. 14. Appropriate consideration for promotion of the Petitioner along with other eligible candidates in the feeder post, if any, would be expeditiously made and preferably within a period of 4 months from the date of receipt of a copy of this Court's order. 15. Mr. A.K. Sharma, learned Counsel appearing for the Petitioner submits that in pursuance to the interim order passed on 5.1.2007, a promotional post of Inspector has been kept vacant in the Department and the Petitioner's case be considered against the said vacant post. 16. The writ petition is accordingly disposed of.