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2022 DIGILAW 539 (GAU)

Bhoopandra Singh v. Raj Kumar Pandey

2022-05-25

N.KOTISWAR SINGH, SOUMITRA SAIKIA

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JUDGMENT : N. KOTISWAR SINGH, J. 1. Heard Mr. P.K. Tiwari, learned Senior counsel assisted by Mr. A.R. Gogoi, for the appellant. Also heard Mr. G. Kato, learned State counsel, Government of Nagaland, appearing for respondent Nos.2, 3 and 4. 2. In this appeal, the order dt. 31/10/2018 passed by the learned Single Judge in WP(C) No. 30(AP)/2018 has been put to challenge. The brief facts of the case leading to filing of the writ petition may be stated as follows: 3. In the Arunachal Pradesh Legislative Assembly, there is a post of Reporter, which is governed by the Reporters (Group A) Post Recruitment Rules, 1991, under which there is a common cadre of Reporters, who are classified as Hindi Reporters and English Reporters. Irrespective of the category of the Reporters, there is a common seniority list, which is prepared for further promotion to higher post. The next higher posts to which the Reports, both Hindi and English, are eligible for promotion are the posts of Chief Reporter and Chief Editor of Debates, which are single post cadres. In other words, these two higher posts of Chief Report and Chief Editor of Debates could be filled up from amongst the Reporters (Hindi) and Reporters (English) based on the seniority list and of course on merit, on the recommendation made by the competent selection committee. The promotion to the aforesaid posts are governed by two different Rules i.e. Chief Reporter (Legislative Assembly Secretariat, Group 'A' Post) Recruitment Rules, 1991 and Chief Editor of Debates, Legislative Assembly Secretariat (Group 'A' Post) Recruitment Rules, 1995, framed under Article 187(3) of the Constitution. 4. As per the Recruitment Rules for the post of Chief Reporter, all those Reporters, both English and Hindi, having 3 years of regular service in the grade would be eligible for promotion on the basis of merit with due regard to seniority. As regards the post of Chief Editor of Debates, the said post is to be filled up by way of promotion from amongst the Reporters, both English and Hindi, having 3 years of regular service in the grade on the basis of seniority. In spite of the aforesaid slight difference in the criteria for promotion, the fact remains that Reporters belonging to both English and Hindi category were eligible for consideration and the seniority was one of the prime considerations. 5. In spite of the aforesaid slight difference in the criteria for promotion, the fact remains that Reporters belonging to both English and Hindi category were eligible for consideration and the seniority was one of the prime considerations. 5. Subsequently, certain amendments were made in the Recruitment Rules for the post of Chief Editor of Debates in 1995 whereunder it was provided that the post of Chief Editor of Debates was to filled up only from amongst the Reporters (Hindi) having 3 years of regular service in the grade on the basis of seniority, thus, thereby denying any promotional avenue to the Reporters (English). Similarly, amendments were brought in 2015 to the higher post of Chief Reporter, whereby only the Reporter (English) having 3 years of regular service in the grade on the basis of seniority would be eligible, thereby debarring the Reporters (Hindi) to be considered for promotion to the post of Chief Reporter. Though the present appellant is eligible for promotion to the post of Chief Editor of Debates in spite of the amendments made in 2015, he, however, could not be considered for promotion to the post of Chief Reporter by virtue of the amendment made in 2015. Thus, being aggrieved by the aforesaid amendment made to the post of Chief Reporter in 2015, the appellant submitted a representation seeking recall of the 2015 amendments more particularly in respect of Chief Reporter as it prevented consideration of any Reporter in Hindi. The appellant did not have any grievance as regards Chief Editor of Debates for which he was eligible though it prevented consideration of Reporter (English) for promotion to the post of Chief Editor of Debates. 6. According to the appellant, a vacancy arose to the post of Chief Reporter on 31/12/2015. However, by virtue of the amen-dment made in 2015, the writ appellant could not have been considered for promotion and there was no scope for promotion to the post of Chief Editor of Debates even though he was eligible for the reason that the said post of Chief Editor of Debates was already filled up by another senior person and who had a long tenure. Thus, for all practical purposes, the writ appellant felt that the promotional avenue for the appellant has been curtailed. Thus, for all practical purposes, the writ appellant felt that the promotional avenue for the appellant has been curtailed. The appellant again submitted the 2nd representation on 2/3/2016 to the Deputy Speaker, Arunachal Pradesh Legislative Assembly Secretariat, who made a recommendation that the issue raised by the writ appellant requires consideration by the competent authority before the post of Chief Reporter is filled up on the basis of amended Rules. 7. On the basis of the aforesaid recommendation of the Deputy Speaker, the Hon'ble Speaker, Arunachal Pradesh Legislative Assembly on 26/6/2017 issued certain instruction to make consolidated Recruitment Rules of all categories of posts in the Arunachal Pradesh Legislative Assembly Secretariat and to take necessary actions. While the aforesaid process was going on, the respondent No. 1 filed a writ petition before this Court which was registered as WP(C) No. 30(AP)/2018 in which the present appellant was not a party, directing the authorities to complete the process of filling of the post of Chief Reporter within a period of 2(two) months on the basis of the amended 2015 Recruitment Rules. The consequence of such a direction was that though the present writ appellant was not a party in the writ petition, his endeavour to seek amendment of the 2015 amended Rules by including the post of Reporter (Hindi) as the feeder post for promotion to the post of Chief Reporter was virtually negated. The appellant accordingly, has preferred this writ appeal challenging the said judgment and order dtd. 30/10/2018 passed in WP(C) No. 30(AP)/2018. Apart from the fact that the appellant was not a party in the said writ petition, which has prejudicially affect his right. The appellant has also brought to the notice of this Court that during the pendency of the said writ petition, the authority of the Arunachal Pradesh Legislative Assembly in 2018 again made certain amendments in the Recruitment Rules for the aforesaid two posts of Chief Reporter and Chief Editor of Debates. 8. By notification dtd. 7/3/2018 published in the Arunachal Pradesh Gazette dtd. 29/3/2018, the Recruitment Rules were further amended by providing that the post of Chief Reporter will be filled up from amongst Reporters (both English and Hindi) having 3 years of regular service in the grade on the basis of seniority. Similarly another notification dtd. 8. By notification dtd. 7/3/2018 published in the Arunachal Pradesh Gazette dtd. 29/3/2018, the Recruitment Rules were further amended by providing that the post of Chief Reporter will be filled up from amongst Reporters (both English and Hindi) having 3 years of regular service in the grade on the basis of seniority. Similarly another notification dtd. 10/2/2018 was issued, by which the Recruitment Rules to the post of Chief Editor of Debates was further amended by making Reporters (both English and Hindi) eligible for promotion to the said post who have 3 years of regular service in the grade on the basis of seniority. 9. Learned Senior counsel for the appellant submits that the fact remains that Rules have been changed, and as per the latest decision of the Hon'ble Supreme Court in Civil Appeal No. 9746/2011 (State of Himachal Pradesh and Others vs. Raj Kumar and Others) and Civil Appeal No. 9747/2011 (Anurag Sharma and Others vs. State of Himachal Pradesh and Others), decided on 20/5/2022, filling up of vacancies will be governed by the existing rules and not the old rules as existing when the vacancies arose. The Hon?ble Supreme Court after discussing the relevant law in this regard has given a categorical finding in the aforesaid case of Anurag Sharma (supra), as follows:- “37.3 The consistent findings in these fifteen decisions that Rangaiah's case must be seen in the context of its own facts, coupled with the declarations therein that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of rules which existed on the date which they arose, compels us to conclude that the decision in Rangaiah is impliedly overruled. However, as there is no declaration of law to this effect, it continues to be cited as a precedent and this Court has been distinguishing it on some ground or the other, as we have indicated hereinabove. For clarity and certainty, it is, therefore, necessary for us to hold. (a) The statement in Y.V. Rangaiah vs. J. Sreenivasa Rao that, “the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules”, does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. It is hereby overruled. (a) The statement in Y.V. Rangaiah vs. J. Sreenivasa Rao that, “the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules”, does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. It is hereby overruled. (b) The rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services.” 10. Accordingly, it has been submitted that in view of the aforesaid latest decision of the Hon'ble Supreme Court, the posts of Chief Reporter as well as post of Chief Editor of Debates are to be filled up as per the existing Rules, and since regular promotions have not yet been made as because of certain litigation as referred to above, these posts are required to be filled up as per the existing Recruitment Rules, in which event, the writ appellant will also be eligible for being considered for promotion to the post of Chief Editor of Debates as well as Chief Reporter. 11. In the present appeal, this Court on 15/3/2021 had passed an order to the effect that the respondent No. 1 has not put in appearance though notice has been duly served upon him by registered post with A/D and as such, the service shall be deemed to be complete. Under the circumstances, this Court ordered that in case the respondent No. 1 does not appear by the next date of listing, the matter shall proceed ex-parte. The respondent No. 1 has not made any appearance today also. Accordingly, we have passed the order without hearing the respondent No. 1, but after hearing Mr. G. Kato, learned counsel for the official respondent Nos.2-4, who also has fairly admitted to the aforesaid latest position in law as held in Raj Kumar (supra) that the vacancies to posts are to be filled up on the basis of existing Recruitment Rules and not on the basis of Rules as prevalent when the vacancies arose, which was the basis of the decision of the learned Single Judge in WP(C) No. 30(AP)/2018. 12. 12. Having heard the learned counsel for the parties, we are of the opinion, as also submitted by the official respondents that the post of Chief Reporter has not yet been filled up till date and the vacancy still exist and the respondent No. 1 is serving in the post of Chief Reporter on officiating basis and not on regular basis by following the due process of selection. 13. Under the circumstances, we direct that the post of Chief Reporter be filled up in terms of the existing Recruitment Rules as notified by the notification dtd. 7/3/2018 in the light of the decision of the Hon'ble Supreme Court in Raj Kumar (supra). 14. For the reasons discussed above, we allow this appeal by setting aside the judgment and order dtd. 31/10/2018 passed by the learned Single Judge in WP(C) No. 30 (AP)/2018. 15. Since there is a substantive vacancy to the post of Chief Reporter and as the respondent No. 1 is holding the said post on officiating basis, the said post will be filled up on regular basis as per the existing Recruitment Rules for the posts of Chief Reporter and Chief Editor of Debates within a period of 2(two) months from today. 16. With the above observations and direction, the appeal stands allowed.