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2010 DIGILAW 218 (GAU)

S. Prafullo Singh v. State of Manipur

2010-03-23

MAIBAM B.K.SINGH

body2010
JUDGMENT Maibam B.K. Singh, J. 1. Heard Mr. H.S. Paonam, learned Counsel appearing on behalf of the petitioners and Mr. Sh. Yangya, learned Addl. Govt. Advocate appearing on behalf of the State respondents. 2. Upon hearing the parties through their respective counsel and on perusal of the materials before the Court, it is ascertained that there is no dispute in respect of the following facts : The petitioners, who are B.Sc. (Agri./Hort.) with M.Sc. (Agri./Hort.) have been serving as Soil Conservation Officers/A.Os./Equivalent in the Horticulture & Soil Conservation Department, Government of Manipur. As per provisions of column No. 10 under heading of second sub-quota read with column No. 11 of the Recruitment Rules of 1980 for the post of Deputy Directors and other posts with an identical scales of pay and similar duties in the Agriculture, Horticulture & Soil Conservation Departments, Manipur, since the petitioners are the Officers possessing B.Sc. (Agri./Hort.) with M.Sc. (Agri./Hort.) and also having already served as Soil Conservation Officer/A.Os./Equivalent for the period more than prescribed minimum period, they are entitled to be considered for promotion to the 60% of posts of the Deputy Directors. During the subsistence of the said Recruitment Rules of 1980, three posts of Deputy Directors became vacant. Two of them became vacant due to promotion of Shri D.N. Pathak and Shri Jaipal S. Yadav, Deputy Directors to the posts of Joint Directors/Equivalent with effect from 11.10.2002 vide Government order dated 24.10.2002 and other post became vacant due to retirement on superannuation of Shri Surendra Singh Yadav, Deputy Director, Horticulture Specialist with effect from 31.12.2001 vide Government order dated 4.12.2001. While the said three posts of the Deputy Directors were lying vacant, the Governor of the State in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, framed the Horticulture & Soil Conservation Department, Manipur (Deputy Director/Equivalent) Recruitment Rules of 2003 in supersession of all the previous Rules issued in that regard vide Notification dated 26.8.2003. In the new Recruitment Rules of 2003, the provisions for giving promotion under two sub-quotas as provided in column Nos. 10 and 11 of the old Recruitment Rules have been removed. In the new Recruitment Rules of 2003, the provisions for giving promotion under two sub-quotas as provided in column Nos. 10 and 11 of the old Recruitment Rules have been removed. For better appreciation of the changes made in the relevant Recruitment Rules, the new Recruitment Rules are reproduced below : Column No. 10 (old Recruitment Rule) : By Promotion in two sub-quota : First sub-quota : 40% from the cadre of Agriculture Officers possessing B.Sc. (Agri./Hort.) Bachelor's degree in Science/Arts with service specified in Col. No. 11. Second sub-quota : 60% from cadre of Agriculture Officers possessing B.Sc. (Agri./Hort.) with M.Sc. (Agri./Hort.) or Graduates in Science/Arts with Master degree in Agricultural Science with service specified in Col. No. 11. Provided that if sufficient number of officers holding M.Sc. (Agri./Hort.) Master's degree in Agricultural Sciences with or without B.Sc. (Agri./Hort.) is not available for promotion, the remaining vacancies in this sub-quota may be filled up by persons possessing B.Sc. (Agri./Hort.) with service specified in Col. No. 11. Column No. 11 (old Recruitment Rules) Promotion : From the cadre of Agriculture Officers with the following periods of regular service in the cadre. 1st sub-quota : 1. Officers Possessing B.Sc. (Agri./Hort.)-6 years. 2. Officers Possessing Bachelor's Degree in Science/Arts 12 years. 2nd sub-quota : 1. Officers Possessing B.Sc. (Agri./Hort.) with M.Sc. (Agri./Hort.)-4 years. 2. Officers Possessing Bachelor's degree in Science/Arts with Master's degree in Agricultural Science-6 years. Column No. 10 (New Recruitment Rule) By Promotion. Column No. 11 (New Recruitment Rule) Promotion : From the cadre of HCOs/SCOs/AO/equivalent with 6(six) years regular service in the cadre with the following educational qualifications : (i) Officers Possessing B.Sc. (Agri./Hort.) from a recognized University/Institute. OR (ii) Officers Possessing Bachelor's Degree in Science with Master's degree in Agricultural Science vetted by the ICAR. 3. A sub-quota of 60% for giving promotion from the cadre of Agriculture Officers possessing B.Sc. (Agri./Hort.) with M.Sc. (Agri./Hort.) with service of years provided in column No. 10 read with column No. 11 of the said Recruitment Rules of 1980 has been removed, amongst others, in the new Recruitment Rules of 2003. 3. A sub-quota of 60% for giving promotion from the cadre of Agriculture Officers possessing B.Sc. (Agri./Hort.) with M.Sc. (Agri./Hort.) with service of years provided in column No. 10 read with column No. 11 of the said Recruitment Rules of 1980 has been removed, amongst others, in the new Recruitment Rules of 2003. There cannot be any doubt that if the said three vacant posts of the Deputy Directors are to be filled up as per the provisions of the old Recruitment Rules of 1980 and not under the provisions of the new Recruitment Rules of 2003, the petitioners will be having better prospect of getting promotion to the vacant posts. 4. Apparently being apprehensive that the authorities are likely to cause filling up of the said three vacant posts of the Deputy Directors/Equivalent under the new Recruitment Rules of 2003 instead of under the old recruitment Rules of 1980, this writ petition has been filed praying mainly for directing the concerned respondents to fill up the said vacant posts strictly in terms of the old Recruitment Rules of 1980 which was in force when the said vacancies arose. It is ascertained that there is no specific denial from the side of the respondents in respect of the allegations of the petitioners in para No. 11 of the writ petition to the effect that process has been initiated for filling up of the said vacant posts through the Manipur Public Service Commission by following the new Recruitment Rules of 2003. 5. Mr. H.S. Paonam, learned Counsel appearing on behalf of the petitioners cites the decisions of the Hon'ble Apex Court made in Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. (1983) 3 SCC 284 and, The State of Rajasthan v. R. Dayal and Ors. (1997) 10 SCC 419 and submits that the said three vacant posts are required to be filled up as per provisions of the old Recruitment Rules of 1980 which was in existence at the time when the said vacancies arose. 6. On the other hand, Mr. Sh. Yangya, learned Addl. G.A. of the State respondents draws my attention to the decision of the Hon'ble Apex Court in Delhi Judicial Services Association and Ors. v. Delhi High Court and Ors. (2001) 5 SCC 145 and The State of Punjab and Ors. v. Arun Kumar Aggarwal and Ors. 6. On the other hand, Mr. Sh. Yangya, learned Addl. G.A. of the State respondents draws my attention to the decision of the Hon'ble Apex Court in Delhi Judicial Services Association and Ors. v. Delhi High Court and Ors. (2001) 5 SCC 145 and The State of Punjab and Ors. v. Arun Kumar Aggarwal and Ors. (2007) 10 SCC 402 and submits that the said three vacant posts are required to be filled up as per provisions of the new Recruitment Rules of 2003. 7. In Y.V. Rangaiah and Ors. (supra) the Hon'ble Apex Court held to the effect that the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules. The decision of the Apex Hon'ble Court in the said case was that the posts which fell vacant prior to the amended Rules would be governed by the old Rules and not by the new Rules. In R. Dayal and Ors. (supra), the Hon'ble Apex Court reiterated the same view relying on its earlier decision in Y.V. Rangaiah (supra). In A.A. Calton v. Director of Education (1983) 3 SCC 33 , P. Ganeshwar Rao v. The State of A.P. 1988 Supp. SCC 740 and B.L. Gupta v. MCD (1998) 9 SCC 223 , the Hon'ble Apex Court took the same view. However, the normal Rule that the vacancy prior to the new Rules would be governed by the old Rules and not by the new Rules was not followed by the Apex Court in Delhi Judicial Services Association and Ors. (supra) on consideration of the facts of the case which were found quite different from the facts in Y.V. Rangaiah (supra) and also on consideration of the fact of processes having already started in pursuance of a consensual order having been passed. The normal Rules was not also followed in Arun Kumar Aggarwal and Ors. (supra) on finding that the Government had already taken a conscious decision not to fill up the vacancies under the old Rules. In Arun Kumar Aggarwal and Ors. The normal Rules was not also followed in Arun Kumar Aggarwal and Ors. (supra) on finding that the Government had already taken a conscious decision not to fill up the vacancies under the old Rules. In Arun Kumar Aggarwal and Ors. (supra), the Hon'ble Apex Court was of the view that the said conscious decision had been validity taken keeping in view of the facts and circumstances of the case because the old Rules in the case did not have provision for promotion of diploma holder Junior Engineer whereas the new Rules specifically provided quota for them. 8. In the present case, there is nothing to show that the Govt. took a valid conscious decision not to fill up the said three vacancies under the old Rules of 1980. In fact, there is no specific pleading in this regard in the counter-affidavit of the State respondents. As per pleading in the counter-affidavit of the State respondents, the Department could not finalise the final seniority of A.Os./Equivalent, and as such, DPC for filling up of the three vacant posts of the Deputy Directors/Equivalent could not be held. In the absence of any basis for concluding that the non-filling up of the said three vacant posts was due to a conscious decision validly made on the part of the Government for not filling them up under the old Rules of 1980, I do not find any reasonable ground for deviating from the normal Rules that vacancies prior to the new Rules would be governed by the old Rules and not by the new Rules. Since the new Rules of 2003 have no retrospective effect, the said new Rules cannot also adversely affect the right of the petitioners for consideration for promotion acquired under the old Rules of 1980 in respect of the said vacancies which arose while the said old Rules was in force. 9. In the result, the State respondents are directed to fill up the said three vacant posts of the Deputy Director/Equivalent in term of the old Rules of 1980 which was in force at the time when the vacancies arose. This writ petition stands disposed of in terms of the above directions. No costs. Petition allowed.