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Gauhati High Court · body

2012 DIGILAW 1213 (GAU)

Clement D. Sangma v. State of Meghalaya

2012-10-16

I.A.ANSARI

body2012
ORDER Iqbal Ahmed Ansari, J. 1. Heard Mr. L. Lingdoh, learned counsel for the writ petitioner Nos. 1 and 3 inasmuch as the petitioner No. 2 is already dead. I have also heard Mr. N. D. Chullai, learned Senior Government Advocate, Meghalaya, appearing for the State respondents. The controversy, in this writ petition, made under Article 226 of the Constitution of India, has arisen out of an advertisement, dated 10.02.2010, published by the respondents, whereby the respondent No. 4, namely, Meghalaya Public Service Commission (in short, 'MPSC'), has invited applications to fill up, amongst others, 23 (twenty-three) posts of Inspector of Excise, 19 (nineteen) of the said posts being meant for male candidates and 4 (four) for female candidates. On the ground that the petitioners are eligible, in terms of the relevant Draft Recruitment Rules, known as The Meghalaya Excise (Subordinate) Service Rules (in short, the 'Draft Rules'), for promotion to the post of Inspector of Excise and that if the said 23 (twenty-three) vacancies are filled up by way of direct recruitment, the present petitioners would be deprived from being promoted to the post of Inspector of Excise and they would suffer stagnation in their service, the petitioners have put to challenge, by way of the present Writ petition, the advertisement, dated 10.02.2010, aforementioned. 2. During the pendency of this writ petition, the said Draft Rules have been finalized, named as 'The Meghalaya Excise' (Subordinate) Service Rules, 2010 (in short, the 'Finalised Service Rules'), and the same have been published on 10.08.2010. 3. A bare reading of the Draft Rules shows that Rule 6(1) of the Draft Rules related to the filling up of vacancies in the post of Inspector of Excise. Rule 6(1) of the Draft Service Rules, being relevant, is reproduced hereinbelow: 6(1) Inspector of Excise:--Appointment to the post of Inspector of Excise shall be made:-- (i) By promotion from amongst the Assistant Inspector of Excise, who have rendered not less than 5 years of continuous service in such capacity on the first day of the year in which the selection is made and is included in the select list approved under sub-rule (4) of Rule 10. (ii) By direct recruitment on the result of the Competitive examination conducted by the Commission. (iii) The proportion of vacancies to be filled up in any year in accordance with clauses (i) and (ii) above shall be 40:60 respectively. 4. (ii) By direct recruitment on the result of the Competitive examination conducted by the Commission. (iii) The proportion of vacancies to be filled up in any year in accordance with clauses (i) and (ii) above shall be 40:60 respectively. 4. From a close reading of Rule 6(1) of the Draft Rules, it becomes transparent that under the Draft Rules, the ratio of the vacant posts to be filled up, in any given year, by way of promotion and direct recruitment was 40:60 meaning thereby that, out of 100 posts, 40 posts were to be filled up by way of promotion and 60 posts by way of direct recruitment. 5. It needs to be noted, however, that the Draft Service Rules have been amended, as mentioned above, and the ratio of the posts to be filled up by way of promotion and direct recruitment has been amended and raised, in the Finalised Service Rules, to 50:50 from the ratio of 40:60, which Rule 6(1)(iii) of the Draft Service Rules had prescribed before its amendment. 6. From a close reading of Rule 6(1) of the Draft Rules vis-a-vis the finalized Service Rules, it becomes transparent that under the Draft Rules, the ratio of the vacant posts to be filled up, in any given year, by way of promotion and direct recruitment, was 40:60; whereas, the Finalised Service Rules have made the ratio 50:50. 7. Justifying the advertisement, and their right to fill up as many as 23 (twenty-three) posts of Inspector of Excise by direct recruitment, the respondents averred, in their affidavit-in-opposition, thus: 12. That in regard to the statement made in para 11 of the writ petition, I beg to state that during the latter part of 2009, the Total number of sanctioned posts of Inspector of Excise was 43 (Forty-three). Out of the 43 (forty-three) posts, 20 (twenty) were Occupied by the promotees and there was no direct recruit. As Such, all the 23 (twenty-three) vacancies in the post have been Earmarked for direct recruitment. The then Draft Meghalaya Excise (Subordinate) Service Rules provided for filling up of the vacancies in the post of Inspector of Excise both by promotion and direct recruitment in the ratio of 40:60. At that stage, the quota for promotion had already exceeded. As Such, all the 23 (twenty-three) vacancies in the post have been Earmarked for direct recruitment. The then Draft Meghalaya Excise (Subordinate) Service Rules provided for filling up of the vacancies in the post of Inspector of Excise both by promotion and direct recruitment in the ratio of 40:60. At that stage, the quota for promotion had already exceeded. Consequently, the Department had requested the Meghalaya Public Service Commission to recruit candidates for filling up the 23 (twenty-three) vacancies (19 for males and 4 for females) and the vacant posts were advertised by the Commission on 10.02.2010. The petitioners submitted a representation, dated 22.02.2010, requesting for promotion to the post of Inspector of Excise against the existing vacancies. The Department, however, considered their request as unjustified since the vacancies were meant for direct recruitment. 8. The further case, as set up by the respondents, in paragraph 15 of their affidavit-in-opposition, read as under: 15. That as regards the statement made in para 14 of the writ petition, I beg to state that the statement made by the petitioners that the respondents acted illegally, arbitrarily and discriminatorily in issuing Advertisement No. MPSC/ADVT-38/1/2009-2010/1, dated 10.02.2010, is not true. During the latter part of 2009, the total number of sanctioned posts of Inspector of Excise is 43 (forty-three) out of which 20 (twenty) were occupied by the promotees and there was no direct recruit. As such, all the 23 (twenty-three) vacancies in the post have been earmarked for direct recruitment. The then Draft Meghalaya Excise (Subordinate) Service Rules provided for filling up of the vacancies in the post of Inspector of Excise both by promotion and direct recruitment in the ratio of 40:60. At that stage, the quota for promotion had already exceeded. Consequently, the Department had requested the Meghalaya Public Service Commission to recruit candidates for filling up of the 23 (twenty-three) vacancies (19 males and 4 for females) and the vacant posts were advertised by the Commission on 10.02.2010. The finalized Meghalaya Excise (Subordinate) Service Rules, 2010, prescribed in the appointment ratio to the post of Inspector of Excise at 50:50. The Department is in the process of intimation of the revised quota and also of the actual vacancies standing at present after the notification of the finalized Service Rules to the Meghalaya Public Service Commission for necessary action. The finalized Meghalaya Excise (Subordinate) Service Rules, 2010, prescribed in the appointment ratio to the post of Inspector of Excise at 50:50. The Department is in the process of intimation of the revised quota and also of the actual vacancies standing at present after the notification of the finalized Service Rules to the Meghalaya Public Service Commission for necessary action. The advertisement of the vacancies in the post of Inspector of Excise was made as per the provisions of the then Draft Meghalaya Excise (Subordinate) Service Rules and, therefore, the same should remain in place but with slight modification to bring it in line with the recently notified Service Rules. 9. Considering the fact that, in the year 2009, the total number of sanctioned posts of Inspector of Excise was 43 and the promotees were already occupying as many as 20 posts and as there was no direct recruit, the State Government decided to fill up the said 23 vacant posts by way of direct recruitment. The decision, so taken by the Government, was not against the Rules inasmuch any further inaction, on the part of the Government, to take corrective steps, would have rendered Rule 6(1) redundant. 10. In view the fact that even under the Final Service Rules, the ratio between the direct recruitees and promotees has been made 50:50, the endeavour to fill up the said 23 posts by way of direct recruitment, in terms of the impugned advertisement, dated 10.08.2010, cannot be said to be arbitrary, unjust or in violation of the relevant recruitment rules. 11. Because of what have been discussed and pointed out above, this Court does not find that the petitioners have been able to make out any case warranting interference with the impugned advertisement in exercise of this Court's extra-ordinary jurisdiction under Article 226 of the Constitution of India. 12. While, therefore, the writ petition is not allowed, it is, however, made clear that as and when any vacancy, in the post of Excise Inspector, arises, the case of the writ petitioners shall be considered by the respondents/authorities concerned in terms of the relevant recruitment rules. 13. With the above observations and directions, this writ petition stands disposed of. The interim directions, passed in Misc. Case No. 81(SH)/2010, on 12.03.2010, shall accordingly stand vacated.