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2021 DIGILAW 93 (GAU)

Ram Sevak Kurmi v. State Of Assam

2021-02-08

SANJAY KUMAR MEDHI

body2021
JUDGMENT Sanjay Kumar Medhi, J. - Considering the subject matter in dispute and also in view of the fact that pleadings have been exchanged, the present writ petition is taken up for disposal at the admission stage itself. 2. I have heard Ms. SB Choudhury, learned counsel for the petitioner. I have also heard Ms. MD Bora, learned Standing Counsel, Transport Department, Assam as well as Ms. B Bora, learned counsel for the Accountant General, respondent no.7. Ms. M Devi, learned counsel appears on behalf of the respondent no. 8. 3. The subject matter of challenge in this writ petition is an order dated 17.02.2020 by which, the private respondent no. 8 has been promoted to the post of Head Assistant. It is the case of the petitioner that the petitioner was appointed as a Lower Division Assistant (LDA) in the Inland Water Transport Department vide an order dated 23.12.1986 and subsequently promoted to the rank of UDA (Senior Assistant) on 04.04.2008 and his name was against Sl. No.4. By the said order, the respondent no. 8 was also promoted to the rank of UDA and was placed in Sl. No.2. It is the case of the petitioner that while he had joined as Senior Assistant on 16.04.2008, the respondent no. 8 had joined the said post of Senior Assistant on 30.04.2008. The post of UDA, being the feeder cadre for the post of Head Assistant, an exercise was undertaken in which the respondent no. 8 was selected and subsequently promoted as Head Assistant vide an order dated 17.02.2020. Being aggrieved by the order dated 17.02.2020, the petitioner had initially submitted a representation and thereafter also filed WP(C) No.1995/2020 in which an order dated 27.03.2020 was passed issuing notice and observing that the order of promotion would be subject to the outcome of the writ petition. However, since the private respondent no. 8 had already joined in the higher post of Head Assistant, the earlier writ petition was withdrawn and the present writ petition filed. 4. On receipt of notice, both the Department as well as the private respondent no. 8 have filed their respective counter affidavits and the petitioner has also filed rejoinder-affidavits. 5. Ms. However, since the private respondent no. 8 had already joined in the higher post of Head Assistant, the earlier writ petition was withdrawn and the present writ petition filed. 4. On receipt of notice, both the Department as well as the private respondent no. 8 have filed their respective counter affidavits and the petitioner has also filed rejoinder-affidavits. 5. Ms. Choudhury, learned counsel for the petitioner submits that the aforesaid promotion is made in gross violation of Rule 11 (iii) of the Assam Ministerial District Establishment Service Rules, 1967 (for short hereinafter referred to as the 1967 Rules) whereby the petitioner has been ignored in spite of being senior to the respondent no. 8. The second ground of challenge is that vide an amendment of the aforesaid Rules made in the year 2015, the minimum qualification for the post of LDA has been enhanced from matriculation to Graduation and in the instant case, while the petitioner is a Graduate, the respondent no. 8 is only a matriculate. 6. Ms. MD Bora, learned Standing Counsel, Transport Department, on the other hand submits that neither of the grounds are tenable. While the interpretation of the petitioner as regards Rule 11 (ii) of the 1967 Rules is incorrect, the second ground of the amendment shall not be applicable in the instant case. She further clarifies that the relevant Rule is Rule 11 (ii) and not Rule 11 (iii) as contended in the writ petition. 7. Ms. M Devi, learned counsel for the respondent no. 8 while endorsing the submissions of Ms. Bora, learned Standing Counsel, additionally submits that there is no question on his eligibility and the promotion to the rank of Head Assistant has been done strictly in accordance with the Rules holding the field. As regards the contention of the petitioner in connection with the amendment of 2015, Ms. M Devi, learned counsel submits that such amendment can only be prospective in nature and cannot have any bearing with the appointment of the respondent no. 8 which was in the year 1986. 8. The rival submissions of the learned counsel for the parties have been duly considered and the materials available before this Court have been carefully examined. 9. To appreciate the issue at hand, it would be beneficial to extract Rule 11 (ii) of the 1967 Rules, which is as under: "11. Seniority: (i) ... 8. The rival submissions of the learned counsel for the parties have been duly considered and the materials available before this Court have been carefully examined. 9. To appreciate the issue at hand, it would be beneficial to extract Rule 11 (ii) of the 1967 Rules, which is as under: "11. Seniority: (i) ... (ii) In the Upper Division (including "Sadar Nazir and" Sub-divisional Nazir) cadre, the seniority shall be according to the position in the Select list from which the promotion to posts of [Senior Assistant] is made." 10. The said Rule in clear terms lays down that seniority would be according to the position in the Select List from which promotion to the rank of UDA was made. A bare look of the order dated 04.04.2008 would show that the respondent no. 8 was placed in Sl. No.2 whereas the petitioner was placed in Sl. No.4. The petitioner tried to rely upon a Gradation List dated 08.03.2017 in which the name of the petitioner was above the name of the respondent no. 8. However, taking into consideration the relevant Rules, it is not the position in the Gradation List but the position in the Select List which would govern and would be relevant for the purpose of promotion to the rank of Head Assistant. 11. As regards the contention of the petitioner by taking recourse to the amendment of 2015 is concerned, this Court finds force in the contention of the learned counsel for the respondents that such amendment can only be prospective in nature and therefore, prescription of the minimum qualification of Graduate in the rank of LDA cannot be a relevant consideration for the recruitment done in the year 1986. In any case, the Gazette Notification dated 16.10.2015 itself makes it clear that the amended Rules would come into force on the date of publication in the Official Gazette. 12. The law relating to prospective application of statutes is well settled. 13. In the case of Young Vs. Adams, United States District Court, WD Texas, Waco Division, March 11, 2010. 693 F. Supp. 2d 635 (WD Tex.2010), it was observed that retrospective operation ought not to be given to a statute, unless an intention to that effect is expressed in plain and unambiguous language. 14. In the case of Hitendra Vishnu Thakur Vs. Adams, United States District Court, WD Texas, Waco Division, March 11, 2010. 693 F. Supp. 2d 635 (WD Tex.2010), it was observed that retrospective operation ought not to be given to a statute, unless an intention to that effect is expressed in plain and unambiguous language. 14. In the case of Hitendra Vishnu Thakur Vs. State of Maharashtra, (1994) 4 SCC 602 , it was stated that the ambit and scope of an amending Act and its retrospective operation as follow: "(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) .... (iii) .... (iv) .... (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication." 15. In view of the aforesaid facts and circumstances, this Court is of the opinion that no case for interference by this Court in exercise of the extra ordinary jurisdiction conferred by Article 226 of the Constitution of India is made out and accordingly, the writ petition stands dismissed. 16. Parties to bear their own costs.