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2012 DIGILAW 965 (GAU)

Dwijendra Barman v. Principal Judge, Family Court

2012-08-10

AMITAVA ROY, P.K.MUSAHARY

body2012
JUDGMENT Amitava Roy, J. 1. The petitioners in service in the establishment of the Family Court, Cachar, Silchar, albeit in different contexts assail the advertisement dated 16.12.2010 issued by the Principal Judge, Family Court, Cachar, Silchar initiating a process for filling up of the vacant post of Superintendent in her establishment by direct recruitment. Thereby, candidates having at least five years experience of service as Upper Division Assistant (hereinafter for short referred to as the UDA) in Government establishment with preference to persons having experience in the judicial department were indicated to be eligible to participate in the exercise. We have heard Mr. A.S. Bhattacharyya, Senior Advocate and Mr. P. Roy, Advocate for the petitioners in WP(C) No. 1476/2012 and in WP(C) No. 2749/2012, respectively. We have heard as well Mr. U.K. Nair, learned Standing Counsel, Gauhati High Court, Guwahati for the Respondent No. 1 and Mr. P.S. Deka, learned Govt. Advocate for the Respondent Nos. 2 & 3. 2. The service profiles of the petitioners as disclosed in their pleadings, for ready reference are synopsized in the following table. Name of the petitioners Date of appointment as LDA-cum-Typist and the name of the Establishment Date of confirmation as LDA-cum-Typist Date of promotion as UDA/Nazir Shri Dwijendra Barman 12.04.1994 in the Officer of the District & Sessions Judge, Cachar, Silchar 01.12.2001 as L.D. Assistant 23.04.2007 as Nazir in the Family Court, Silchar Md. Arif Uddin Laskar 12.04.1994 as LDA-cum-Typist in the Establishment of District & Sessions Judge, Cachar, Silchar and posted in the office of the Munsiff No. 1, Cachar, Silchar. 01.12.2001 LDA-cum-Typist. 23.04.2007 as Upper Division Assistant in the Family Court, Cachar, Silchar. 3. Whereas, the petitioner in WP(C) No. 1476/2012 has claimed himself to be a member of the Scheduled Tribe (Plains) community in the district of Cachar, Md. Arif Uddin Laskar petitioner In WP(C) No. 2749/2012 has not asserted any reserved category status. Records disclose that by order dated 05.01.2008, the Principal Judge, Cachar, Silchar treated the recruitment of the petitioners as Nazir and Upper Division Assistant referred to hereinabove as promotions, their service in the Family Court, Cachar, Silchar being in continuation of their previous service. The petitioners have referred to various administrative orders of this authority issued from time to time entrusting responsibilities to them, in addition to their normal duties attached to their respective posts. The petitioners have referred to various administrative orders of this authority issued from time to time entrusting responsibilities to them, in addition to their normal duties attached to their respective posts. Reference in particular has been made to the order No. 29 dated 07.08.2007, whereby, in view of shortage of staff, the Principal Judge Family Court, Cachar, Silchar had outlined a job chart, whereunder, amongst others, the petitioners have been assigned additional duties as referred to therein. Administrative orders have also been relied to indicate that at times during leave periods of the regular Superintendent, Shri Dwijendra Barman, petitioner in WP(C) No. 1476/2012 as the Nazir of the establishment was allowed to remain In-charge of the office. Likewise, Md. Arif Uddin Laskar, petitioner in WP(C) No. 2749/2012 for brief periods of leave was allowed to remain In-Charge of the office of the Family Court, Cachar, Silchar. 4. Whereas, the petitioner in WP(C) No. 1476/2012 contended that in view of his longstanding experience in service and satisfactory discharge of the duties of the office of the Superintendent, as above, he is entitled to be promoted thereto in preference to other eligible candidates, if any, in the establishment of the Family Court, Cachar, Silchar, the petitioner in WP(C) No. 2749/2012 refuting this claim, has asserted that Upper Division Assistant being the only feeder post of promotion to that of Superintendent and as the post of Nazir is sub-ordinate thereto, he in view of his blemishless services is the only candidate eligible and entitled to be elevated to the higher post of Superintendent. Both are, however, one in impugning the advertisement for direct recruitment to the post of Superintendent to be violative of the Assam District & Sessions Judges Establishment (Ministerial) Service Rules, 1987 (for short hereinafter referred to as the Rules, 1987) and thus patently non est Emphatic reference has also been made to Rule 10 & 11 of the Assam Family Courts Rules, 1990 (also hereinafter referred to as the Rules, 1990). 5. The Respondent No. 1, in the parawise comments furnished in response to the averments in the WP(C) No. 1476/2012 while admitting the appointment of the petitioner to the post of Nazir in the establishment of the Family Court, Silchar, Cachar against a sanctioned post, has categorically denied that he had been discharging the duties and responsibilities of the post of Superintendent as a full-fledged incumbent thereof. His claim of performing the duties of the Superintendent of Family Court, Silchar, Cachar from 07.08.2007 continuously and without any break has also been denied. According to Respondent No. 1, the post of Superintendent, Family Court is not a promotional one from that of Nazir and that accordingly, in view of a vacant (post of Superintendent), the impugned advertisement was issued disclosing, inter alia the conditions of eligibility for participation in the process for recruitment thereto. The Respondent No. 1 has pointed out further that the petitioner in WP(C) No. 1476/2012 having applied for the post of Superintendent in response to the advertisement, he was estopped from challenging the validity thereof. 6. The learned counsel for the petitioners while reiterating their pleaded assertions, have referred in particular to the 1987 Rules and 1990 Rules to insist that having regard to the constitution of the cadre of the staff of Family Court and Rule-11 of the 1990 Rules, in particular the post of Superintendent is essentially a promotional one, and therefore the advertisement is patently illegal and repugnant to the Rules and is thus null and void- Adverting to Rule 11(2) of the 1990 Rules in particular, the learned counsel have urged that it would be apparent from the 1987 Rules that the post of Superintendent is to be filled up by promotion from the feeder post of the staff of the Family Court. Whereas, the learned counsel for the petitioner in WP(C) No. 1476/2012 has urged that the post of Nazir is a feeder post thereto and that he (petitioner) having been entrusted with the duties and responsibilities of the said promotional post over the years, he is entitled to be preferred therefor, it has been maintained on behalf of the petitioner in WP(C) No. 2749/2012 that the post of Nazir being subordinate to that of UDA, this claim is wholly unsustainable. According to Mr. Roy, Md. Arif Uddin Laskar, UDA of the Family Court, Silchar, Cachar being the only eligible candidate for promotion, he ought to be, in terms of the Rules, promoted thereto. 7. Mr. According to Mr. Roy, Md. Arif Uddin Laskar, UDA of the Family Court, Silchar, Cachar being the only eligible candidate for promotion, he ought to be, in terms of the Rules, promoted thereto. 7. Mr. Nair has urged with reference to Rule 10 and 11 of 1990 Rules and Rule 6 of the 1987 Rules that a conjoint reading thereof would unambiguously suggest that the post of Superintendent in the establishment of the Family Court is to be filled up by promotion in terms of the prescriptions of Rule 6(3) of the 1987 Rules. This, the learned Standing Counsel has pleaded is reinforced by the definition of expression "District & Sessions Judges Establishment" provided in Rule 2(3) of the 1987 Rules. He, however has urged, adverting to the staff pattern of the Family Court as well as the order (s) sanctioning posts therefor that there being one post of U.D. Assistant in the establishment, having regard to the requisites of Rule 6(3), the zone of eligible candidates ought to be enlarged in order to obviate the possibility of routine promotion of the only incumbent in the post of U.D. Assistant. On being queried by this Court, Mr. Nair has clarified that no selection has yet been made in the process initiated by the impugned advertisement. The learned Standing Counsel to buttress his contentions placed reliance on the decision of Apex Court in Union of India Vs. Anr. Vs. C. Dinakar, IPS & Ors. 2004 (6) SCC 118 . 8. We have duly considered the pleaded facts together with the documents on record as well as the rival submissions advanced. The petitioners, to reiterate, are in service with the Family Court, Cachar, Silchar and in unison have assailed the advertisement contending that the post of Superintendent in their establishment is a promotional one and therefore no direct recruitment thereto is contemplated. Admittedly, the petitioners in WP(C) No. 1476/2012 and WP(C) No. 2749/2012 are as on date serving as Nazir and U.D. Assistant of the Family Court, Cachar, Silchar respectively in substantive capacity, though, both of them claimed to have been discharging additional responsibilities as entrusted to them from time to time. 9. Rules 1990 have been framed by the State Government in exercise of its powers under Section 23 of the Family Court's Act, 1984. 9. Rules 1990 have been framed by the State Government in exercise of its powers under Section 23 of the Family Court's Act, 1984. Rule 10 define the staff strength thereof providing amongst others, one post each of Superintendent and U.D. Assistant and three posts of L.D. Assistant. The official communication No. JDJ(E) 24/2002/76 dated 19.01.2006 of the Joint L.R. and Joint Secretary to the Government of Assam, Judicial Department, conveyed the sanction of posts as enumerated therein for the establishment of the Family Court at Silchar. As this document would reveal inter alia one post of Nazir with the pay scale of Rs.3850 - 7350/- equivalent to that of U.D. Assistant was added to the cadre strength reflected in Rule 10 of 1990 Rules. The retention of these posts for the period beyond 28.02.2006 as referred to in the letter dated 19.01.2006 was conveyed by the communication No. JDJ(E) 24/2002/100 dated 04.08.2007. As is submitted at the Bar, these posts continue to exist in the establishment of the Family Court, Cachar, Silchar, as on date. 10. Rule 11 of the 1990 Rules having a formidable bearing on the present adjudication deserves extraction as hereinbelow: 11. Terms and conditions of services. (1) Except otherwise expressly provided in these Rules, the terms and conditions of service of the staff referred to in the foregoing rule shall be the same as that of the corresponding grade in the establishment of the District and Sessions Judge. (2) The post of Superintendent referred to in item No. 1 of R. 10(1) shall be equivalent to mat of Sheristadar in the establishment of the District and Sessions Judge. It would be apparent from the above quote that subject to the provisions otherwise expressly made in the 1990 Rules, the terms and conditions of service of the staff of the Family Court would be the same as that of the corresponding grade in the establishment of District & Sessions Judge. Further, the post of Superintendent appearing in Rule 10(1) has been declared to be equivalent to that of Sheristadar in the establishment of the District & Sessions Judge. Further, the post of Superintendent appearing in Rule 10(1) has been declared to be equivalent to that of Sheristadar in the establishment of the District & Sessions Judge. The expression "District & Sessions Judges Establishment" has been defined in Rule 2(3) of the 1987 Rules as hereunder: District & Sessions Judge Establishment means and includes all non-gazetted ministerial staff in the office of the District & Sessions Judge, Additional District & Sessions Judge, Special Judge and Munsiffs of the District. 11. Rule 3 of these Rules prescribes the cadre of service with the post of Sheristadar of District & Sessions Judge, Addl. District & Sessions Judge, Asstt. District & Sessions Judge and Munsiff as well as Head Assistant, Supervisory Assistant, Upper Division Assistant and Lower Division Assistant. Each of the categories of posts as this provision of the Rules enjoin form an independent cadre and a member of lower cadre would have no claim for appointment to any of the higher cadres except in accordance with the provisions made in the Rules. The District & Sessions Judge's Establishment as defined hereinabove thus means and includes all Non-Gazetted Ministerial Staff in the office of the District & Sessions Judge, Addl. District & Sessions Judge, Asstt. District & Sessions Judge, Special Judge and Munsiffs. In view of this inclusive definition, in our estimate, the post, Sheristadar of Asstt. District & Sessions Judge can be construed to be equivalent to that of Superintendent in the establishment of the Family Courts as contemplated in Rule 11(2) of the 1990 Rules. Consequentially, Rule 6(3) of the 1987 Rules would be attracted to determine the procedure for filling up the post of Superintendent, Family Courts. Rule 6(3) enjoins that the post of Sheristadar of Asstt. District & Sessions Judge, Supervisory Assistant and Sheristadar of the Court of Munsiff would be filled up by promotion from amongst Upper Division Assistants of the District and Sessions Judges establishments who have rendered not less than seven years of service in the District & Sessions Judge's Establishment (Ministerial) concerned, out of which, at least three years is continuous service as Upper Division Assistant in that establishment on the first day of the year in which the promotion is made. This provision of the Rules prescribes Seniority-cum-Merit to be the criteria for promotion. This provision of the Rules prescribes Seniority-cum-Merit to be the criteria for promotion. The preparatory steps for the contemplated process of promotion have been detailed in the note appearing under Rule 6(3). 12. It would thus be evident from the mandate of Rule 6(3) of the 1987 Rules that an Upper Division Assistant who has rendered not less than seven years of service in the District & Sessions Judge's Establishment (Ministerial) out of which three years is continuously as Upper Division Assistant in that establishment, would be eligible for promotion to the post of Sheristadar of Assistant District & Sessions Judge considered to be equivalent to that of Superintendent in the establishment of the Family Courts. 13. Adverting to the staff pattern of the Family Court at Cachar Silchar, there being one post of Upper Division Assistant, the incumbent thereof unless unfit would thus be the automatic choice for promotion to the only post of Superintendent. This amongst others may precipitate stagnation as well as eventuate undeserving promotional benefits. It is, thus, in the perspective of the length of qualifying service mentioned in Rule 6(3) with the in built flexibility noticeable in it, that it would be expedient, in order to ensure an enlarged zone of consideration that other posts, equivalent to that of Upper Division Assistant but satisfying the conditions of eligibility referred to in Rule 6(3) be contemplated to be feeder posts for such promotion. Further candidates serving as UDA in the District & Sessions Judge's establishment for a continuous period of three years but had served in all seven years or more in the same establishment in some other post would also be construed eligible for such promotion. This understandably would require a fresh look into the relevant Rules for necessary clarifications. Be that as it may, in our comprehension, having regard to the present state of the Rules involved, the inevitable conclusion has to be that the post of Superintendent for the establishment of Family Courts is on to be filled up by promotion and not by direct recruitment. The impugned advertisement dated 16.12.2010 and the process initiated on the basis thereof is collectively adjudged to be illegal and non est in law. The authorities concerned would now take appropriate steps to facilitate the filling up of the post of Superintendent in the establishment of Family Court, Cachar, Silchar. The impugned advertisement dated 16.12.2010 and the process initiated on the basis thereof is collectively adjudged to be illegal and non est in law. The authorities concerned would now take appropriate steps to facilitate the filling up of the post of Superintendent in the establishment of Family Court, Cachar, Silchar. The petitions are allowed to the extent indicated hereinabove. No costs.