Kandarpa Kumar Bordoloi Vs the State of Assam and Anr.

Heard Mr. D. P. Borah, learned Counsel for the appellant and Mr. S. K. Talukdar, learned Standing Counsel, Cooperation Department, Assam, representing the State respondents.

¶20

The petitioner before this Court has been working as a Grade-IV employee in the office of the Registrar of Cooperative Societies, Assam, Guwahati, since the year 2009. An exercise was undertaken in the year 2017 for promotion of the Grade-IV employees working in the office of the Registrar of Cooperative Societies, Assam, to the post of Grade-III. As per the Assam Directorate Establishment (Ministerial) Service (Amendment) Rules, 2016 (herein after called the Rules of 2016 for the sake of brevity), 10% of the vacancies in GradeIII have to be filled up by way of promotion from amongst the eligible Grade-IV employees as per their seniority. The relevant rule is nomenclature as Assam Directorate Establishment (Ministerial) Service Rules, 1973 (herein after called the Rules of 1973 for the sake of brevity).

¶21

Two posts of Junior Assistant fell vacant in the office of the Registrar of Cooperative Societies, Assam, which were to be filled up by way of promotion from amongst the Grade-IV employees. One out of the said two posts was filled

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up by the authorities in the year 2017 by promoting one Sri Kumud Das, GradeIV/Peon. The petitioner was not promoted although he was senior to the incumbent who was promoted.

¶24

Aggrieved, he filed WP(C) 7113/2018. The case of the writ petitioner in that litigation was that although the writ petitioner was senior to the respondent no. 3 in the Draft Gradation List of the Grade-IV/Peon of the Registrar of Cooperative Societies, Assam, the writ petitioner was placed at Sl. No. 9 and the respondent who was promoted was placed at Sl. No. 7 in the final gradation list and, consequently, he was not considered for promotion although he was entitled to be promoted. The writ petition did not find favour with the learned Single Judge and was dismissed by the order dated 01.02.2021.

¶25

Aggrieved by the order of the learned Single Judge, the writ petitioner filed WA No.79/2021. The appellate Court did not find occasion to interfere with the order of the learned Single Judge. The Appellate Court held that once the inter se seniority list has attained finality, promotion has to be based on that seniority list, unless the list itself was put to challenge. However, since the Court had been informed that out of the aforesaid two posts of Junior Assistant, only one post has been filled up, the authorities in the Cooperation Department were required to undertake an exercise to fill up the remaining one post of Junior Assistant considering the candidature of the writ appellant/present petitioner along with other eligible candidates in accordance with law.

¶26

Another draft Gradation List of peon in the Office of the Registrar of

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Cooperative Societies, as on August 2021 was published, wherein the name of the petitioner, appeared at Sl.No.8. However, when a process for promotion to the post of Senior Assistant and Junior Assistant in the office was taken up through a Selection Committee meeting held on 05.01.2022, the committee considered four vacancies of Junior Assistants to be filled up by way of promotion. The committee observed that the zone of consideration of Grade IV peon to be considered for promotion to the post of Junior Assistant had to be taken in the ratio of 1:4. Considering the candidates available in the Gradation List from Serial No.1 to 16, the committee found one Arupjyoti Talukdar to be the only candidate, who fulfilled the criteria, laid down in, Rule 10, (3) and 12, (III) of the Assam Directorate Establishment (Ministerial Service Rule 1973) as amended in 2016.

¶29

The committee had found that the only eligible candidate was a degree holder, and had completed 11 years and 6 months of service in the Department. Accordingly, the said post was filled up by the only eligible candidate. The promotee is not a party to this litigation and his promotion is not under challenge.

¶30

Challenging the non-consideration of the petitioner during the selection made by the Committee, the petitioner has filed his present petition, on the ground that the committee committed an error, when it did not consider the petitioner to be eligible for promotion.

¶31

It has been submitted on behalf of the petitioner, that when two numbers of

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posts of Junior Assistant fell vacant prior to the amendment of the Rules of 2016, one post was filled up during the earlier process which culminated in the minutes dated 08.08. 2017. The process for promotion to the next post should have been immediately taken up in which case the petitioner would have come within the zone of consideration, and would have been recommended for promotion to the post of junior assistant which fell vacant prior to the amendment brought to the Rules in the year 2016.

¶34

It is the case of the petitioner that had he been considered for promotion at the relevant point of time in accordance with the unamended rules, he would have been found to be eligible for promotion to the post, and being within the zone of consideration, he could have been afforded the promotion. In such circumstances, the learned counsel for the petitioner submits that the petitioner is now also required to be considered with reference to the eligibility conditions as laid down in the unamended rules, and thereafter necessary orders be passed by the respondent authorities, promoting the petitioner, to the post of Junior Assistant. The crux of the case of the petitioner is reflected at paragraph 16 of the writ petition, which is quoted herein below for ease of reference.

¶35

“16.That your Petitioner states that the Rule 10(3) Assam Directorate Establishment (Ministerial) Service Rules, 1973 was amended vide Notification dated 27.9.2016 which Prescribes the minimum education qualification for promotion from Grade IV to Junior Assistant as Bachelor's degree from a recognized University. However, 2(two) nos. of vacancy in the post of Junior Assistant arose prior to the year 2014, i.e. prior to the amendment of Rule 10(3). The unamended Rule 10(3) prescribed the qualification for promotion to the post

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of Junior Assistant as Higher Secondary passed with 5 years continuous service or matriculate with 7 years continuous service. Accordingly, for promotion to the said 2(two) posts of Junior Assistant from Grade IV, the provision of unamended Rule 10(3) would have been applicable. In this regard, the Hon'ble Apex Court in the case of Y. V. Rangaiah -Vs- J. Sreenivasa Rao & Ors. reported in (1983) 3 SCC 284 has held that the vacancies which occurred prior to the amended rules would be governed by the old rule and not by the amended rules. As such, the Petitioner who fulfills the qualification prescribed by the old Rules, is eligible for getting promotion to the post of Junior Assistant which fell vacant prior to amendment of the Assam Directorate Establishment (Ministerial) Service Rules, 1973.”

¶38

The learned counsel for the petitioner therefore submits that the writ petition deserves to be allowed by directing the respondent authorities to consider the case of the petitioner for promotion to the post of Junior Assistant Grade (III) which fell vacant prior to the amendment of the Rules of 1973, with effect from that date on which the next candidate was promoted, in the year 2022. The learned counsel for the petitioner has relied upon the law laid down in Y. V. Rangaiah -Vs- J. Sreenivasa Rao & Ors. reported in (1983) 3 SCC 284 to buttress his submissions.

¶39

The respondents in the Cooperation Department, have filed an affidavit through the Additional Registrar, (General) Cooperative Societies’ Head Office wherein, after recital of the previous litigation involving the petitioner, a stand has been taken that after the amendment effected to the Rules of 1973, the minimum requirement of educational qualification for consideration to the post of Junior Assistants have been raised from higher secondary level to that of a

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graduate degree. It is the case of the respondents that the petitioner not being a graduate degree holder, was not eligible to be considered for promotion, and therefore, the only eligible candidate within the zone of consideration in the Gradation List had been recommended for promotion and was also granted such promotion. The Department has also taken a stand that the remaining vacancies are required to be filled up by recruitment since eligible incumbents are not available for promotion within the department.

¶42

Mr. S.K. Talukdar, learned counsel appearing for the Cooperation Department, has placed reliance on the case of State of Himachal Pradesh vs. Raj Kumar and Others , reported in (2023) 3 SCC, 773 to submit that the case relied upon by the learned counsel for the petitioner has been overruled in the case of Raj Kumar (Supra). He has submitted that policy decisions taken up by the Government in public interest would prevail over any claim to fill up vacancies. The Apex Court in the case of Raj Kumar (Supra) had held that the statement made in “ Rangaiah(supra) that the vacancies which occurred prior to the amendment 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 and it was thereafter overruled.

¶43

Heard the learned counsels appearing for the parties and also perused the judgments referred by them. It is an admitted position that Rule 10 (3) of the Assam Directorate Establishment (Ministerial) Service Rules 1973 was amended

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by notification dated 27.09.2016. The pre amended rule and the rule after

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effecting the amendment are quoted herein below for ease of reference;

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The Rule prior to amendment

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“10. [Junior Assistant].- Appointment shall be made by the appointing authority-

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(1) by direct recruitment;

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(2) by selection on the basis of suitability with due regard to seniority from amongst other Class-III employees as classified in the Assam Services (Revision of Pay) Rules, 1983 of the office whose scale of pay are less than that of the [Junior Assistant) and who have passed (i) the Higher Secondary School Leaving Certificate Exami-nation/Pre-University Examination or equivalent examination and have rendered not less than 5 years, or (ii) the Matriculation or equivalent examination and have rendered not less than 7 years of continuous service in the Office on the 1st day of the year in which the selection is made.]

¶51

(3) By selection on the basis of suitability [with due regard to seniority] from amongst the Grade IV staff of the office who passed (i) the Higher Secondary or equivalent examination and have rendered not less than 5 years or (ii) the matriculation or equivalent examination and have rendered not less 7 years of continuous service in the office on the 1st day of the year in which the selection is made.”

¶52

The Rule after amendment

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GOVERNMENT OF ASSAM

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DEPARTMENT OF PERSONNEL:::::::::::::PERSONNEL.(B)

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DISPUR:::::::::: GUWAHATI

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ORDERS BY THE GOVERNOR

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NOTIFICATION

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Dated Dispur, the 27th September, 2016

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No. ABP 118/2015/3: In exercise of the power conferred by the proviso to Article 309 of the Constitution of India, the Governor of Assam is hereby pleased to make the following rules

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further to emend the Assam Directorate Establishment (Ministerial) Service Rules, 1973, hereinafter referred to as the principal Rules, namely: -

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Amendment of rule 10 2. In the principal Rules, In rule 10,

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(1) for the existing sub-rule (3), the following shall be subertinted, namely:-

¶64

"(3) By Selection on the basis of suitability from amongst the Grade-IV staff of the office who possess a Bachelor's degree from a University recognized by the Government and also possess such other qualification as laid down in sub-rule (ill) of rule 12 and have rendered not less than seven years of continuous service in the office on the first day of the year on which the selection is made:

¶65

Provided that the number of vacancies to be filled up in any year according to the sub-rule(3) shall not exceed 10% of the vacancies:

¶66

Provided further that in the event of sufficient number of qualified or suitable person not being available from Grade-IV staff of the office, the vacancies available under the first proviso of this rule, shall be made through direct recruitment."

¶67

In view of the above, it is apparent that by the amendment notified on 27.09.2016, the mandatory educational qualification for being eligible to be considered for promotion to the post of Junior Assistant from amongst Grade-IV

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staff of the Office was settled at Bachelor Degree from a University recognized by the Government.

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The law has been settled by the Apex Court in Raj Kumar and Others

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(Supra) that the eligibility criteria as prevalent on the date of consideration for promotion are required to be adhered to by the State agencies. After the decision in Raj Kumar and others (supra), the proposition of law relied upon by the learned Counsel for the petitioner has been overruled and therefore in the facts and circumstances of the present case, the prayers made by the petitioner cannot be granted by this Court.

¶72

Accordingly, this writ petition is closed, rejecting the prayer made in the writ petition. Parties are left to bear their own costs.

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JUDGE

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Comparing Assistant

Kandarpa Kumar Bordoloi v. the State of Assam and Anr.

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Kandarpa Kumar Bordoloi v. the State of Assam and Anr.

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