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2016 DIGILAW 1091 (GAU)

Anita Choudhury (Dr. ) v. State of Assam

2016-12-06

HRISHIKESH ROY, PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER : Hrishikesh Roy, J. 1. Heard Mr. T.N. Srinivasan, the learned counsel appearing for the petitioner. The State authorities are represented by Mr. B. Kaushik, the learned Standing Counsel of the Higher Education deptt. but he submits that Mr. D. Saikia, the learned Addl. Advocate General is to advance the argument and he has no instruction to make any submission in the matter. 2. Today is a hearing day and this case is being argued since morning and only after conclusion of the hearing from the petitioner's side, the respondents' lawyer have prayed for adjournment on the ground that the Addl. A.G. is busy in another court. The request for accommodation is abruptly made and since this bench is not the regular D.B. roster, the adjournment of the case will cause difficulties. However, since pleadings are exchanged, we will try to deal with the stand of the State with the assistance of the departmental lawyer. 3. The petitioner is serving as a Research Officer (R.O) in the Directorate of Historical and Antiquarian Studies (here-in-after referred to as "the Directorate") and has re-approached the court but this time, to challenge the vires of Rule 5 of the Directorate of Historical and Antiquarian Studies (Gazetted) Service Rules, 2010 (hereinafter referred to as 'the 2010 Rules'). According to the petitioner, the 2010 Rules is ultra-vires the constitution as this impairs her legitimate right to be considered for promotion to the post of Director. Moreover, the prescribed eligibility qualification provides for single class legislation and is obstructive for everyone, who is not an MA in History. The petitioner contends that under the draft Assam Historical and Antiquarian Studies Service Rules, 1989 (hereinafter referred to as 'the 1989 Rules') followed earlier, the petitioner with her postgraduate degree in Sanskrit was eligible to be considered for the post of Director under Rule 12 (4)(a) but now with the changed norms, she is made ineligible for the same post, under the 2010 Rules. 4. The last person who headed the Directorate on regular basis under the 1989 Rules, superannuated in 1998 and since then, the post is being manned by deputed generalist from the State Civil Service (ACS). Such ACS officers had diverse educational qualification in subjects like History, Economics, Assamese, Hindi and History but their core subject was never an impediment for discharge of function as the Head of the Directorate. Such ACS officers had diverse educational qualification in subjects like History, Economics, Assamese, Hindi and History but their core subject was never an impediment for discharge of function as the Head of the Directorate. Even earlier, since 1933, persons with postgraduate qualifications in English, Assamese or History have headed the Directorate with distinction and many amongst them brought glory to the organization. But now under the 2010 Rules, the qualification for the post, inter alia, is stipulated as postgraduate degree in History and thus, the field of recruitment is singularly restricted and the postgraduates in other disciplines, who may be qualified otherwise, are being kept out consideration. 5. The petitioner initially joined the Directorate as a Publication Assistant on 13.09.1987 and she was promoted as a Research Officer on 08.02.1994 (Annexure 1) and her service in the feeder cadre post was regularized on 08.06.2001. Under the 1989 Service Rules, the post of R.O. is equivalent to Deputy Director and Preservation Officer under the schedule-i and schedule-ii of the 1989 Rules and they are in the feeder cadre, for promotion to Director's post. The Rule 12 provide for promotion and sub-rule (4) of the 1989 Rules prescribes the eligibility criteria for promotion, as follows:- "..... 4. Subject to suitability an officer shall be eligible for promotion the person must possess the qualifications and experience as set forth below:- (a) For the post of Director, a person must possess M.A. degree in History or Sanskrit or Archeology or Anthropology having at least 2nd class with wide knowledge and experience in the field of History or Publication Work and at least 3 years experience as Deputy Director or Research Officer in the Department of Historical and Antiquarian studies is essential. For direct recruitment Ph.D Degree with sufficient experience is essential. (b) For Deputy Director and Research Officer, a person must be an M.A. in History or Sanskrit or Archeology or Anthropology or M.L.I.S.C. at least second class with research work in his/her credit and at least 3 years working experience in the Deptt. Of Historical and Antiquarian Studies is essential. (c) For preservation officer a person must be a graduate in any discipline and must have the training of "Record Management or Preservation in Books and records from National Archives of India, New Delhi-1. Knowledge of preservation of records and documents having 5 years working experience is essential. Of Historical and Antiquarian Studies is essential. (c) For preservation officer a person must be a graduate in any discipline and must have the training of "Record Management or Preservation in Books and records from National Archives of India, New Delhi-1. Knowledge of preservation of records and documents having 5 years working experience is essential. The post is promotional from the qualified experience and senior staff and the special officer Ahom Studies, Literary Asstt. Librarian and Officer-in-charge if qualified persons are available in the Deptt. ....." 6. As can be seen from the above provision of the 1989 Rules, a serving officer in the feeder cadre with postgraduate degree either in History, Sanskrit, Archeology or Anthropology with required 3 years of regular service in the feeder cadre, is eligible for promotion to the post of Director and it is important to note that the last regular Director Jitendra Nath Bhuyan was appointed as Director, under the 1989 Service Rules. 7. Long after the superannuation of the last regular Director Jitendra Nath Bhuyan in the year 1998, the 1989 Rules continued to be described as draft Rules, although norms therein were followed for appointment. But as they were not officially formalized, the petitioner filed the WP(C) No. 827/2005 for notifying the draft Service Rules, as it was already made the basis for appointment of regular Directors in the past. The anxiety of the petitioner in the feeder cadre stemmed from the fact that while the Government has been making appointment on the basis of the 1989 Service Rules, the un-notified Rules were ignored on occasions, to appoint ACS Officers to man the post of Director. This had resulted in selective adherence to the norms. Thus, direction was sought on the Government, for notifying the Service Rule in order to avoid adhocism and to formalize the norms for appointment. 8. During the earlier litigation process, the court noted that the State failed to notify the Service conditions for the Directorate, for last about 8 decades since 15.07.1929 but are keen now to finalize the 1989 draft Service Rules. Accordingly, direction was issued on 17.02.2009 (Annexure 10) in the WP(C) No. 827/2005 to notify the Service Rules for the posts in the Directorate of Historical and Antiquarian Studies. 9. Since the draft Service Rules could not be notified within the stipulated 4 month period, the State filed the Misc. Accordingly, direction was issued on 17.02.2009 (Annexure 10) in the WP(C) No. 827/2005 to notify the Service Rules for the posts in the Directorate of Historical and Antiquarian Studies. 9. Since the draft Service Rules could not be notified within the stipulated 4 month period, the State filed the Misc. Case No. 302/2009 whereby further time was prayed by the applicants to finalize the draft Service Rules. Eventually, under the gazette notification dated 15.11.2010, the 2010 Rules was framed in exercise of powers conferred by Article 309 of the Constitution. However, under the 2010 Rules only those with MA Degree in History are made eligible for appointment as Director and since by this time, the petitioner had acquired a vested right to be considered for appointment under the norms prescribed by the 1989 Service Rules, she has challenged the vires of Rule 5 of the 2010 Rules. She also seeks consideration on the basis of her MA Sanskrit and Ph.D. qualification. The concerned provision of Rule 5 are extracted herein below for easy reference: "The post of Director shall be filled up by the Appointing Authority from the categories of Officers/Persons as below :- (a) By direct recruitment for appointing a well reputed scholar of Assam specially in the field of History who possesses a master Degree in History having minimum 55% marks besides a Doctorate Degree preferably in History and outstanding contribution-either in History or in any subject having direct bearing on the History of Assam. The incumbent will have to be well conversant with the language, literature and cultural heritage of Assam. His/her age should not be below 45 years and not above 55 years on the 1st day of the year of advertisement; (b) For the Department Candidates who have acquired Master Degree in History with Ph.D. Degree shall be eligible for application to the post." 10. The Directorate of Historical and Antiquarian Studies was set up during the British Rule as an institution for collection, preservation, compilation of old manuscripts, rare books, journals, coins, copper-plates and such items of archeological, anthropological and historical significance. Since 15.7.1929 when the Directorate started functioning, various scholars of repute have headed the organization and it can be seen that those Directors had possessed educational qualification in diverse fields, such as, English, History, Assamese etc. For example, two of the longest serving Directors, Dr. Since 15.7.1929 when the Directorate started functioning, various scholars of repute have headed the organization and it can be seen that those Directors had possessed educational qualification in diverse fields, such as, English, History, Assamese etc. For example, two of the longest serving Directors, Dr. S.K. Bhuyan was postgraduate in English, whereas Dr. Lila Gogoi was a Master Degree holder in Assamese and their contribution to the Directorate are appreciated even today. The last regular Director Mr. J.N. Bhuyan, who superannuated in 1998, was a Master Degree holder in History. But since then, only ACS officers were deputed as Director but they had different educational background in diverse subjects like Economics, History, Botony, Assamese and Hindi etc. 11. Considering the nature of the work done by the Directorate towards Collection, Preservation and Compilation of old manuscripts, rare books, journals, the petitioner with her postgraduate qualification in Sanskrit, can be considered to be specially suitable for the works in the Directorate, not only by virtue of her experience in the feeder cadre post since 1994 but also on account of the fact that large number of ancient manuscripts are in the Sanskrit language and the petitioner with her academic background can certainly be an asset for the works in the organization. Others with specialization in subjects like Archeology, Anthropology, History and languages can also be similarly considered suitable, for the nature of the job to be performed by the Head of the Directorate. But since only the postgraduates in History are made eligible for the Director's post under Rule 5 of the 2010 Rules, the petitioner challenges the single class and the restrictive field of choice as it not only violates her right of fair consideration under Article 16 of the Constitution but also impairs her vested right, under the earlier norms followed by the State for appointment of Directors. 12.1 The learned Counsel for the petitioner Mr. T.N. Srinivasan submits that the respondents had earlier followed the norms under the 1989 Draft Rules for appointment and even to regularize the service of the last regularly appointed Director, through the Public Service Commission, by invocation of the norms under the 1989 Draft Rules. 12.1 The learned Counsel for the petitioner Mr. T.N. Srinivasan submits that the respondents had earlier followed the norms under the 1989 Draft Rules for appointment and even to regularize the service of the last regularly appointed Director, through the Public Service Commission, by invocation of the norms under the 1989 Draft Rules. Therefore the petitioner with her service in the feeder cadre since 8.2.1994 contends that she has acquired a vested right (after retirement of the last Director in 1998), to be considered for promotion to the post of Director under the same norms as applicable then, without being restricted by the changed norms under the 2010 Rules. 12.2 According to the petitioner, only because she made demands upon the authorities for due consideration under the existing norms, the rules of the game was changed to make the petitioner ineligible, notwithstanding her suitability and long experience in the works of the Directorate. 12.3 The learned Counsel for the petitioner submits that there is no logic to confine the choice to only those with Master Degree in History for the post of the Director as during the past 8 odd decades many non-History postgraduates have not only headed the organization ably but has given the works in the Directorate its current shape. 13. The counter affidavit filed by the Commissioner and Secretary to the Government of Assam, Department of Higher (Technical) Education are perused to appreciate the State's stand, with assistance of the learned standing counsel, Mr. B. Kaushik. It is averred therein that the P.G. qualification in History for the Director's post is prescribed so that the selected person is able to deal with the works done in the Directorate. Thus it is contended that a person with strong background with History and particularly familiar with the history of Assam and the ancient manuscripts, would be a suitable person for the post. That is why the State exclusively provided for history postgraduates, in the 2010 Rules, as eligibility criterion for appointment to the post of Director. 14. While the capability of a person with strong background of History to head the Directorate of Historical and Antiquarian Studies, cannot be undermined, the logic of the restrictive choice to be made only from History discipline is difficult to comprehend, in the present matter. 14. While the capability of a person with strong background of History to head the Directorate of Historical and Antiquarian Studies, cannot be undermined, the logic of the restrictive choice to be made only from History discipline is difficult to comprehend, in the present matter. In fact, no lesser authority than the former Director General of National Museum, New Delhi and the eminent Professor of History, Dr. R.D. Choudhury, as a Member of the Advisory Committee of the Directorate, through his written communication of 12.10.2011 had questioned as to why only History post graduates are made eligible, when the Directorate has to deal with large number of Sanskrit and Assamese manuscript. Thus it was suggested by the eminent scholar and the member of the Advisory Committee that postgraduate qualification in other disciplines should also be incorporated as in that event, nobody can complain about discrimination and the field of choice would not be restrictive. 15. The nature of the work done in the Directorate i.e. Collection, Compilation of ancient manuscripts, books and journals as well as articles of significance would imply that a person with academic background of Sanskrit, Assamese, History, Anthropology or Archaeology and such other related disciplines would be suitable to head the Directorate. Therefore restricting the field of choice under Rule 5 of the 2010 Rules to only history postgraduates appears to be discriminatory, as it excludes all others, from the arena of consideration. 16. When the last regular Director J.N. Bhuyan retired in 1998, the petitioner had already served in the feeder cadre of Research Officer for more than 3 years. The petitioner is an MA in Sanskrit and she has secured her Ph.D. qualification with her Thesis on the study of the Natas of Shankardeva, under the renowned Scholar Dr. Ram Charan Thakuria and Dr. Rajendra Nath Sarma. She has also published research papers and articles on ancient works of Shankardeva and Madhavdeva and as the R.O. for the last 22 years, has wide experience about the works done under the Directorate. Thus she cannot abruptly be made ineligible since she had acquired vested right for consideration under the then applicable norms, covering the field i.e. 1989 Draft Rules. When the norms are changed under the 2010 Rules and the petitioner is made ineligible, it would clearly breach her vested right to be considered under the earlier norms. Thus she cannot abruptly be made ineligible since she had acquired vested right for consideration under the then applicable norms, covering the field i.e. 1989 Draft Rules. When the norms are changed under the 2010 Rules and the petitioner is made ineligible, it would clearly breach her vested right to be considered under the earlier norms. The Supreme Court in Y.V. Rangaiah v. J. Sreenivasa Rao reported in (1983) 3 SCC 284 , had held that vacancies in the promotional post occurring prior to the amendment have to be filled up in accordance with the earlier Rules and declaration was thus made to the effect that the post which fell vacant prior to the amended Rules would be governed by the old Rules and not by the new Rules. When this is the authoritative pronouncement of the Apex Court, the petitioner according to our understanding, cannot be kept out of consideration by application of the 2010 Rules. 17. In P. Mahendran v. State of Karnataka reported in (1990) 1 SCC 411 , the Apex Court referred to the well settled Rule of construction that Statutory Rules will have to be applied prospectively unless the words in the Rules reflects the intention to impact the existing rights. It was specifically held that if a Rule is expressed in language which is fairly capable of either interpretation, it ought to be construed as of prospective application, to avoid unnecessary hardship to those, who are affected by the new Rules. In our perception, this rule of interpretation should be followed in this matter as the petitioner can't be made to suffer prejudice by application of the changed norms. 18. The obligation of the State, to formulate Rules under Article 309 to be reasonable, fair and not grossly unjust, was declared by the Apex Court in State of U.P. v. Ram Gopal Shukla reported in (1981)3 SCC 1 and from this ratio it can safely be concluded that Rules cannot be framed in exercise of executive power if the same impairs the available opportunity of a person, for being considered for promotion. 19. The petitioner with her educational qualification was eligible for consideration for promotion under the earlier norms followed in the Directorate and her postgraduate degree in Sanskrit was not an impediment. 19. The petitioner with her educational qualification was eligible for consideration for promotion under the earlier norms followed in the Directorate and her postgraduate degree in Sanskrit was not an impediment. Since three years regular service in the feeder cadre satisfies the eligibility criteria, on superannuation of the earlier Director in 1998, the petitioner having served as Research Officer since 8.2.1994, had acquired the vested right to be considered under the then the applicable norms. But through the restrictive eligibility criteria under the 2010 Rules which ignores postgraduates of all other subjects, a special class is created which appears to be unreasonable and discriminatory. 20. Commenting on such change of norms, the Supreme Court in R.S. Ajara v. State of Gujarat reported in (1997) 3 SCC 641 had held that a benefit that has accrued under the existing Rules, cannot be abrogated by amendment with retrospective effect and no Statutory Rule can whittle down or destroy any right which has become crystalized an no Rule can be framed under the proviso of Article 309 of the Constitution, which impairs the vested right. 21. The petitioner as a long serving employee in the feeder cadre, is entitled for a fair consideration for promotion on the basis of the vested rights accruing to her under the prevalent norms and the rules of the game cannot be changed arbitrarily to whittle down the field of choice to deny her the right of fair consideration. In Badrinath v. Government of Tamil Nadu reported in (2000) 8 SCC 395 , the Supreme Court declared that fairness in the matter of consideration for promotion is guaranteed under Article 16 and every officer has a right to be considered without suffering any discrimination. If such constitutional norms are to be applied, extinguishment of the vested right by change of norms under the 2010 Rules will surely infringe the mandate of Article 16 of the Constitution. Thus we have no hesitation to say that provision for restrictive consideration under the new Rules, must not impair the right of the petitioner to be considered for promotion, on account of her educational qualification. 22. What sphere of academic background is appropriate for the post of Director, is really a matter to be considered by the Government. But nevertheless the Government while formulating the norms must give due weight age to the views expressed by Dr. 22. What sphere of academic background is appropriate for the post of Director, is really a matter to be considered by the Government. But nevertheless the Government while formulating the norms must give due weight age to the views expressed by Dr. R.D. Choudhury, the former Director General of National Museum, New Delhi conveyed in his letter dated 12.10.2011. Before eligibility norms are notified for the posts under the Directorate, all relevant inputs be taken into account and according to us, the State must provide a non-discriminatory and non-restrictive norm in order to appoint the most suitable person to head the Directorate. Therefore restricting the field of choice to only postgraduates of History in our considered opinion, would not only be discriminatory but would also undermine the outstanding works done by the former Directors in the last eight decades with P.G. qualifications in other subjects. 23. The collection and preservation of ancient manuscript, a large number of them in Sanskrit language, is an important task undertaken by the Directorate and therefore it cannot entirely be ruled out that the specification of only one educational discipline is intended to deprive the petitioner of her right to be considered for the post of Director. The field of choice from single discipline without proper consideration of the job requirement do not appear to be logical and according to us the input from the eminent member of the Advisory Committee of the Directorate should have received proper consideration. Thus a re-look of the offending provision of the 2010 Rules is definitely in order. 24. Following the above discussion, we direct the respondents to re-visit the Rules in order to make it consistent with the requirements of Article 16 of the Constitution. However, pending the suggested amendment of law which might need longer time, we direct the State Authorities to consider appointment to the post of Director on regular basis as per the earlier norms prevalent in 1998. The petitioner has acquired a vested right to be considered for promotion under the pre-existing norms followed in the Directorate for appointment to the post of Director and she must not be held disqualified only because, she has the Master Degree in Sanskrit. Therefore her case must be considered by the authorities. The petitioner has acquired a vested right to be considered for promotion under the pre-existing norms followed in the Directorate for appointment to the post of Director and she must not be held disqualified only because, she has the Master Degree in Sanskrit. Therefore her case must be considered by the authorities. The ordered exercise be carried out within a period of 4 months from today, as no incumbent on regular basis was posted as the Director of the organization, since the year 1998. It is ordered accordingly. 25. With the above order, the case is disposed of. No cost.