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2015 DIGILAW 1375 (GAU)

Purabi Kalita v. State of Assam

2015-11-03

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. U.K. Nair, learned counsel for the petitioner, Mr. N. Upadhyay, learned Govt. Advocate, Assam, Mr. R.K. Talukdar, learned Standing Counsel, Assam Public Service Commission (APSC) and Mr. A.K. Bhattacharjee, learned Senior counsel, for respondent No.5. 2. By filing this writ petition under Article 226 of the Constitution of India, petitioner seeks quashing of advertisement bearing No.3/2015, dated 09.01.2015, issued by the APSC in respect of the post of Deputy Legal Remembrancer and Deputy Secretary under Judicial Department and further seeks a direction to the respondents to consider her case for promotion from Law Assistant to Legal Remembrancer and Under Secretary, Judicial Department, to the post of Deputy Legal Remembrancer and Deputy Secretary, Judicial Department. 3. Case of the petitioner is that following a selection process, she was appointed as Law Assistant to Legal Remembrancer and Under Secretary to the Govt. of Assam, Judicial Department, (Law Assistant) vide appointment order, dated 27.11.2007. The post of Law Assistant is a grade-IV post belonging to the Assam Legal Service under the Assam Legal Service Rules, 1962. Pursuant to such appointment, petitioner joined as Law Assistant and since then is continuing as such for about 8 years now. 4. Under the Assam Legal Service Rules, 1962, particularly Schedule 1 thereto, post of Law Assistant is in grade-IV and the next higher post is Deputy Legal Remembrancer and Deputy Secretary, which is in grade-III. As per the said Schedule, both cadres are one post cadre. As per Rule 7(2), in the case of filling up of post in grade-I and grade-II of the Assam Legal Service, it would not be necessary to consult the APSC, but in the case of appointments to grade-III and grade-IV, consultation with the APSC is mandatory. Rule 8 provides for qualifications for direct recruitment. As per Rule 8(3), for appointment to grade-III, qualification prescribed is that a candidate must be an Advocate of a High Court or a Pleader of a District Court having practise of minimum five years or Judicial Officer of minimum five years tenure. Rule 9 deals with promotion. Rule 8 provides for qualifications for direct recruitment. As per Rule 8(3), for appointment to grade-III, qualification prescribed is that a candidate must be an Advocate of a High Court or a Pleader of a District Court having practise of minimum five years or Judicial Officer of minimum five years tenure. Rule 9 deals with promotion. It starts with a non-obstante clause to the effect that notwithstanding anything contained in Rule 8, i.e., the provision relating to direct recruitment, a member of Assam Legal Service shall be eligible for promotion from a lower grade to the next higher grade, whether in substantive capacity or in officiating capacity and for such promotion, qualifications prescribed for direct recruitment would not be applicable. In fact, relaxed criteria of having minimum three years service in the feeder cadre would suffice. 5. According to the petitioner, she fulfils the eligibility requirement for promotion from grade-IV to grade-III, i.e., to the post of Deputy Legal Remembrancer and Deputy Secretary. She had submitted a representation, dated 15.09.2014, before respondent No.2 in this regard. However, without considering her representation, impugned advertisement, dated 09.01.2015, was published by the APSC. Petitioner again represented before respondent No.2 on 13.01.2015. As there was no response, present writ petition has been filed seeking the reliefs as indicated above. 6. Contention of the petitioner is that a conjoint reading of the Assam Legal Service Rules, 1962 (the Rules), particularly Rules 8 and 9 thereof, and having regard to the use of the non-obstante clause in Rule 9, authorities were first required to exercise the promotion option to fill up the vacancy in grade III. Only if no eligible candidate was found for promotion from grade-IV to grade-III, the vacancy in grade-III could have been advertised for direct recruitment. Therefore, without considering the case of the petitioner for promotion as above in terms of Rule 9, resort to direct recruitment under Rule 8 is untenable. Therefore, the impugned advertisement cannot be sustained. 7. This Court by order, dated 17.06.2015, had issued notice and passed an interim order directing the respondents not to proceed with the interview for the post of Deputy Legal Remembrancer and Deputy Secretary in terms of the advertisement, dated 09.01.2015. 8. Respondent No.2 in his affidavit has generally supported the case of the petitioner. 7. This Court by order, dated 17.06.2015, had issued notice and passed an interim order directing the respondents not to proceed with the interview for the post of Deputy Legal Remembrancer and Deputy Secretary in terms of the advertisement, dated 09.01.2015. 8. Respondent No.2 in his affidavit has generally supported the case of the petitioner. Stand taken in the affidavit is that petitioner has the eligibility for promotion to grade-III as per Rule 9 of the Rules. Therefore, she is entitled to a consideration for such promotion. Rule 9 mandates that in the event of availability of an eligible officer in the feeder cadre, his/her case for promotion to the next higher cadre is required to be considered first. Only if no eligible candidate is available or if an eligible candidate is found not suitable for promotion, recourse to Rule 9 is permissible. Representation of the petitioner is yet to be taken up for consideration. However, it is stated that two posts of Deputy Secretary are available in the Judicial Department, the impugned advertisement relating to one vacancy and in respect of the other vacancy, there is a Judicial Officer holding the post on deputation. It is stated that the advertisement was issued without first complying with the provisions of Rule 9 and such advertisement was issued in the absence of the incumbent holding the office of respondent No.2. Petitioner's right to consideration for promotion has been acknowledged. 9. Respondent No.5 got himself impleaded in the present proceeding by filing an interlocutory application. According to respondent No.5, since there are two posts in grade-III in Judicial Department, petitioner may be considered for promotion against the post being held by the Judicial Officer on deputation. There is no infirmity in going for direct recruitment in respect of the other vacancy. Since Rules provide for only two modes of recruitment, i.e., by direct recruitment and by promotion, resort to deputation is impermissible. It is contended that petitioner's case is of promotion from grade-IV to grade-III and not necessarily to the post of Deputy Legal Remembrancer and Deputy Secretary. Doubts have been expressed about submission of representation by the petitioner on 15.09.2014. Since Rules provide for only two modes of recruitment, i.e., by direct recruitment and by promotion, resort to deputation is impermissible. It is contended that petitioner's case is of promotion from grade-IV to grade-III and not necessarily to the post of Deputy Legal Remembrancer and Deputy Secretary. Doubts have been expressed about submission of representation by the petitioner on 15.09.2014. It is further stated that there is an anticipated vacancy in the post of Deputy Secretary in the Legislative Department against which petitioner's case can also be considered since appointments in the Judicial and Legislative Departments by officers of the Assam Legal Service are interchangeable. 10. Mr. Nair, learned counsel for the petitioner, has elaborately referred to the provisions of the Rules and submits that the plain language of Rule 9 gives it an overriding effect over Rule 8. Therefore, in the event of vacancy in a higher cadre, recourse is to be made to Rule 9 first and only thereafter to Rule 8. It is not for respondent No.5 to point out which vacancy should be advertised and which vacancy should be filled up by promotion. Respondent No.5 has no legal right to contest the proceeding or to question the right of the petitioner to a consideration for promotion. He, therefore, submits that impugned advertisement is contrary to the provisions of the Rules and is required to be set aside and quashed. On the point of overriding effect of a non-obstante clause, Mr. Nair has placed reliance on the following decisions of the Hon'ble Supreme Court: 1984 (Supp) SCC 196 (Union of India v. G.M. Kokil and others), (1986) 4 SCC 447 (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram). 11. While learned State Government following the affidavit filed by respondent No.1 has supported the case of the petitioner, learned Standing Counsel, APSC, submits that he has no role to play in the matter at this stage. 12. On the other hand, Mr. Bhattacharjee, learned Senior counsel for respondent No.5, submits that emphasis placed by the petitioner on the overriding effect of Rule 9 is misplaced. He submits that on a true and correct interpretation of the provisions of the Rules, it is manifest that there are two modes of recruitment - by direct recruitment under Rule 8 and by promotion under Rule 9. There is no conflict between the two provisions, each operating in its own sphere. He submits that on a true and correct interpretation of the provisions of the Rules, it is manifest that there are two modes of recruitment - by direct recruitment under Rule 8 and by promotion under Rule 9. There is no conflict between the two provisions, each operating in its own sphere. That is why Rule 8 is placed above Rule 9 and not the other way round. If submission of Mr. Nair is accepted, it will lead to eclipse of Rule 8 thereby foreclosing the option of the appointing authority to go for direct recruitment. It would amount to interpreting the Rules in a way that only promotion is possible to the exclusion of direct recruitment. He submits that though right of respondent No.5 is limited, yet he cannot be denied the right to participate in the open selection for entry into Assam Legal Service which is through the impugned advertisement. 13. Submissions made by learned counsel for the parties have received the due and anxious consideration of the Court. 14. After hearing learned counsel for the parties and from what could be gathered from the affidavits filed by respondent Nos.2 and 5, it is clear that against one post of Deputy Legal Remembrancer and Deputy Secretary as mentioned in Schedule-1 to the Rules, there appears to be two posts. Learned Govt. Advocate was accordingly directed to clarify this matter. Accordingly, on 15.10.2015, learned Govt. Advocate on the basis of written instructions clarified that there are two posts of Deputy Secretary in the Judicial Department, one is the post of Deputy Legal Remembrancer and Deputy Secretary to the Govt. of Assam, i.e., the post which has been advertised and the second post is that of Deputy Secretary. The second post was created in the year 1976 and is being presently held by an officer of Assam Judicial Service (Grade-III) Shri Utpal Rajkhowa. The submissions made at the Bar indicate that the Judicial Officer is holding the post on deputation. 15. As already noticed above, Rules 8 and 9 of the Rules provide for two modes of recruitment to the Assam Legal Service, i.e., by way of direct recruitment under Rule 8 and by way of promotion under Rule 9. There is no provision for appointment by way of deputation. 15. As already noticed above, Rules 8 and 9 of the Rules provide for two modes of recruitment to the Assam Legal Service, i.e., by way of direct recruitment under Rule 8 and by way of promotion under Rule 9. There is no provision for appointment by way of deputation. As a matter of fact, in the letter, dated 15.12.2014 of the Joint Legal Remembrancer and Joint Secretary, Judicial Department, addressed to the Registrar General, Gauhati High Court, which has been annexed as Annexure-1 to the affidavit of respondent No.5, it was stated that the post of Deputy Secretary had fallen vacant and it was decided to fill up the said post by an officer of the Assam Judicial Service on deputation till the post is otherwise filled up by the Government. Accordingly, High Court was requested to recommend the names of suitable Judicial Officers for such deputation. 16. Since filling up of the second post of Deputy Secretary by way of deputation is not under challenge in this proceeding, Court would refrain from adjudicating on the correctness or otherwise of such a move but nonetheless since it has come to the notice of the Court, it has to be observed that filling up of the said vacancy by way of deputation is certainly not prescribed under the Rules. The letter dated 15.12.2014 indicates that the Department is aware of the legal position and has opted for deputation as a stop gap measure till filling up of the vacancy in accordance with the Rules. Moreover, sending Judicial Officers on deputation without statutory backing has got its own pitfalls and may lead to unforeseen complications in future. The concerned authorities may look into this aspect of the matter and may take remedial/corrective steps in this regard. 17. Now adverting to the challenge made in the petition, it is of utmost significance to interpret Rule 9 of the Rules as the entire challenge is centred around Rule 9. Rule 9 has to be read with Rule 8 which provides for direct recruitment. 18. As already noticed above, Rule 9 provides for promotion and starts with the word "notwithstanding". Rule 9 is quoted hereunder: "Promotion. Rule 9 has to be read with Rule 8 which provides for direct recruitment. 18. As already noticed above, Rule 9 provides for promotion and starts with the word "notwithstanding". Rule 9 is quoted hereunder: "Promotion. Notwithstanding anything contained in r.8 above, a member of the service shall be eligible for promotion from a lower grade to the next higher grade, whether in a substantive or officiating capacity, and in the case of such promotion the qualifications laid down for direct recruitment shall not be applicable: Provided that for promotion from Grade II to Grade I, from Grade III to Grade II and from Grade IV to Grade III of the service, the incumbent must have had put in service at least for a period of 3 years in the grade immediately below the one to which he has to be considered for promotion; Provided further that the Governor in appropriate cases may relax the period or service hereinbefore prescribed." 19. A careful reading of Rule 9 would show that it starts with a non-obstante clause to the effect that "notwithstanding anything contained in Rule 8, a member of the service shall be eligible for promotion from a lower grade to the next higher grade." A non-obstante clause is a legislative device, which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or in some other enactment. Such a device is employed to avoid operation and effect of all contrary provisions. It is equivalent to saying that in spite of the provisions or the Act mentioned in the non-obstante clause, the provisions in the enactment whether such non-obstante clause is used will have its full operation or that the provisions indicated in the non-obstante clause will not be an impediment for the operation of the enactment. (Please see State of Assam v. Moslem Mondal, reported in 2013 (1) GLT 809 para 75). 20. The two decisions cited by Mr. Nair also throw significant light on the aforesaid aid to interpretation of statute. In Chandavarkar Sita Ratna Rao (supra), the Apex Court held as follows: "67. (Please see State of Assam v. Moslem Mondal, reported in 2013 (1) GLT 809 para 75). 20. The two decisions cited by Mr. Nair also throw significant light on the aforesaid aid to interpretation of statute. In Chandavarkar Sita Ratna Rao (supra), the Apex Court held as follows: "67. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court inSouth India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum & Anr , AIR 1964 SC 207 at 215 [1964] 4 SCR 280. 68. It is well settled that the expression 'notwithstanding' is in contradistinction to the phrase 'subject to', the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. This will be clarified in the instant case by comparison of sub-section (1) of section 15 with sub-section (1) of section 15A . We are therefore unable to accept, with respect, the view expressed by the Full Bench of the Bombay High Court as relied on by the learned single judge in the judgment under appeal." 21. Having noticed the legal position as above, provisions of Rule 9 may once again be examined. It starts with the expression "notwithstanding anything contained in Rule 8 above". In other words, notwithstanding the provisions of Rule 8, provisions of Rule 9 will have an overriding effect. The use of the non-obstante clause at the beginning of Rule 9 furnishes the key to the proper interpretation of the scope of Rule 9 inasmuch as it supersedes provisions of Rule 8. In other words, notwithstanding the provisions of Rule 8, provisions of Rule 9 will have an overriding effect. The use of the non-obstante clause at the beginning of Rule 9 furnishes the key to the proper interpretation of the scope of Rule 9 inasmuch as it supersedes provisions of Rule 8. This position is in fact accepted by respondent No.2 who has, however, introduced a new element in his affidavit by hinting at some mischief in his absence. 22. Be that as it may, if that be the position, it was incumbent upon the respondents in this case, particularly respondent No.2, to have first considered the case of the petitioner for promotion. Without considering the case of the petitioner for promotion, issuance of the advertisement does not appear to be justified and is contrary to the provisions of the Rules. 23. Accordingly and in view of the above, impugned advertisement, dated 09.01.2015, in respect of the post of Deputy Legal Remembrancer and Deputy Secretary, Judicial Department, is hereby set aside and quashed. Respondent No.2 is directed to consider the case of the petitioner for promotion to the said post in accordance with law within a period of three months from the date of receipt of a certified copy of this order. In so far the other post of Deputy Secretary is concerned, respondent No.2 may take necessary steps in the light of the observations made in this judgment in consultation with the Gauhati High Court. 24. Writ petition is accordingly allowed but without any order as to costs.