WA/166/2019
2021 Latest Caselaw 3105 Gua

GAHC010138352019




                             IN THE GAUHATI HIGH COURT
               (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                                    PRINCIPAL SEAT AT GUWAHATI

                                     Writ Appeal No. 166/2019




                   Shri Yumlam Kaha,
                   Director, Department of Social Justice, Empowerment and Tribunal
                   Affairs, Government of Arunachal Pradesh, Naharlagun,
                   Arunachal Pradesh, Pin-791110.

                                                                       ......Writ Appellant.

                         -Versus-

                   1.    Shri Tabak Hanker,
                         Research Officer, Department of Social Justice, Empowerment and
                         Tribunal Affairs, Government of Arunachal Pradesh,
                         Naharlagun, resident of Sinki Park Colony, Itanagar,
                         Papumpare District, Arunachal Pradesh, Pin-791111.

                   2.    The State of Arunachal Pradesh,
                         represented by the Chief Secretary,
                         Government of Arunachal Pradesh, Itanagar,
                         Arunachal Pradesh, Pin-791111.

                   3.    The Secretary/Commissioner,
                         Department of Social Justice, Empowerment and Tribunal Affairs,
                         Government of Arunachal Pradesh, Itanagar,
                         Pin-791111.

                   4.    The Director,
                         Department of Social Justice, Empowerment and Tribunal Affairs,
                         Government of Arunachal Pradesh, Naharlagun,
                         Pin-791110.

                                                                         ......Respondents.

           WA 166/2019                                                        Page - 1 of 11
                              BEFORE
              HON'BLE MR. JUSTICE N. KOTISWAR SINGH
               HON'BLE MRS. JUSTICE MALASRI NANDI



For the Appellant:        Mr.   D. Das (Sr. Adv.),
                          Mr.   H.K. Nath,
                          Mr.   S.K. Deori,
                          Mr.   R. Sarma.                    ......Advocates.


For the Respondents:      Mr. M.H. Laskar,
                          Mr. B.D. Goswami, Addl. AG, AP.    ......Advocates.



Date of Hearing & Judgment :       25th November, 2021



                       JUDGMENT AND ORDER (ORAL)

[N. Kotiswar Singh, J.]

Heard Mr. D. Das, learned Senior counsel assisted by Mr. H.K. Nath, for

the appellant. Also heard Mr. B.D. Goswami, learned Additional Advocate

General, State of Arunachal Pradesh, appearing for respondent Nos.2--4 and

Mr. M.H. Laskar, learned counsel appearing for the respondent No.1/writ

petitioner.

2. In this appeal, the appellant has challenged the order dated 11.06.2019

passed by the learned Single Judge in WP(C) No.319(AP)/2016, by which the

absorption of the appellant vide order dated 21.12.2015 issued on 31.12.2015

WA 166/2019 Page - 2 of 11 vide Memo No.DSJE-90/2014(E)/284 to the post of Deputy Director in the

Department of Social Justice, Empowerment & Tribal Affairs, Government of

Arunachal Pradesh was set aside with further direction to the respondent

authorities to consider the case of the respondent No.1/writ petitioner for

promotion to the post of Deputy Director in accordance with the Deputy

Director (SW) Group-A, Recruitment Rules, 1998.

3. The aforesaid writ petition was filed by the present respondent No.1

primarily on the ground that the initial deputation of the appellant to the

Department vide order dated 26.09.2014 and his subsequent permanent

absorption vide order dated 21.12.2015 was dehors the Recruitment Rules and

also by ignoring the claim of the respondent No.1/writ petitioner. It was also

submitted that though there was an office memorandum issued by the State

Government on 28.01.2014 specifying that the minimum qualification for

appointment by way of promotion to the said post of Deputy Director would be

graduate, which also recommended making amendments in the relevant

Recruitment Rules, it was contended that the said office memorandum could

not have the effect of superseding the Recruitment Rules, in which no such

educational qualification was provided, till the Recruitment Rules were

amended. It was contended that at the time of deputation and absorption of

the appellant, the Recruitment Rules had not been amended. Accordingly, the

learned Single Judge also held that the said office memorandum dated

WA 166/2019 Page - 3 of 11 28.01.2014 issued by the Chief Secretary, Government of Arunachal Pradesh is

a general office memorandum fixing basic educational qualification as

graduation from a recognized university for promotion to Group-A, Group-B

post. In the present case, the Deputy Director post is a Group-A post. It was

also observed that the said memorandum provided for initiating the process for

amendment of the existing service rules. According to the learned Single Judge,

however, it was found that no amendment to the Recruitment Rules pertaining

to the post of Deputy Director, Social Justice, Empowerment & Tribal Affairs

Department was carried out and in absence of such corresponding amendment

made to the Recruitment Rules, the decision taken by the office memorandum

dated 28.01.2014 prescribing the minimum qualification as graduation for

promotion to Group-B and Group-A being merely an executive order, could not

have the effect of superseding the Recruitment Rules. As such, since the

respondent No.1/writ petitioner had already 3 years of regular service, which is

also provided in the Recruitment Rules and as it did not stipulate the

educational qualification, the respondent No.1/writ petitioner was also eligible

and the absorption of appellant to the post of Deputy Director without

considering the claim of the respondent No.1 was not valid and accordingly, the

learned Single Judge passed the aforesaid order setting aside the absorption of

the appellant vide order dated 21.12.2015 issued on 31.12.2015.

4. Learned Senior counsel for the appellant submits that the fact remains

WA 166/2019 Page - 4 of 11 that subsequently on 01.11.2016, necessary amendments were brought in the

relevant Recruitment Rules by which it was specifically mentioned that the

minimum qualification for promotion to the post of Deputy Director would be

graduation. He also submits that when the order was passed by learned Single

Judge on 11.06.2019, the Recruitment Rules had already been amended and

given effect to, providing for possession of minimum qualification of graduation

for promotion to the post of Deputy Director, Department of Social Justice,

Empowerment & Tribal Affairs, Government of Arunachal Pradesh and as such,

there is no illegality with the absorption order.

5. Learned Senior counsel for the appellant further submits that even

otherwise also, the aforesaid office memorandum dated 28.01.2014 though was

issued as an executive instruction, had the effect of filling up the void and

clarifying which was not provided under the Recruitment Rules. Drawing

attention of this Court to the relevant Recruitment Rules, learned Senior counsel

submits that in the pre-amended Recruitment Rules for the aforesaid post of

Deputy Director, which was to be filled up by promotion, as regards prescription

of the age and educational qualification, nothing was mentioned and as such,

the said office memorandum issued on 28.01.2014 would have the effect of

filling up the said absence of any prescription of the educational qualification

and as such, the said Recruitment Rules does not require to be amended for

the purpose of prescribing graduation as a minimum educational qualification

WA 166/2019 Page - 5 of 11 for the said post. In this regard, learned Senior counsel has placed reliance on

the following decisions of the Hon'ble Supreme Court as well as this High Court

to buttress his submission that the Recruitment Rules can always be

supplemented by the executive instruction wherever any such lacuna/void or

gap exists:-

(i) Senior Superintendent of Post Offices, Allahabad & Ors. Vs. Izhar

Hussain. [(1989)4 SCC 318]

(ii) Sant Ram Sharma Vs. State of Rajasthan & Ors. [AIR 1967 SC

1910]

(iii) Union of India Vs. H.R. Patankar & Ors. [1984 (Supp) SCC 359]

(iv) I Ayangla Imchen Vs. State of Nagaland & Ors. [(2009)5 GLR 741]

6. Accordingly, it has been submitted that since the appellant was deputed

to the department and subsequently absorbed after the coming into force of

the said office memorandum dated 28.01.2014 which had the effect of filling up

the gap as regards the educational qualification, the deputation and absorption

of the appellant does not suffer from any irregularity or illegality. Further, it has

been submitted that the respondent No.1/writ petitioner himself is not yet

qualified in as much as he is merely a Class-XII passed, who does not have the

graduation and as such being not eligible does not have any locus standi to

challenge the absorption.

WA 166/2019 Page - 6 of 11

7. This Court agrees with the submission advanced by the learned Senior

counsel for the appellant that though the Recruitment Rules which had been

framed under proviso to Article 309 of the Constitution of India, can be

amended only by another set of rules made under proviso to Article 309 of the

Constitution, however, when any such void or gap exists in the Recruitment

Rules, such void or gap can be filled up by an executive instruction in view of

the decision rendered by the Hon'ble Supreme Court, as referred to above. In

other words, such executive instruction can supplement any such void or gap in

the Recruitment Rules though it cannot supplant.

8. In this regard, the observation of the Hon'ble Supreme Court in the

aforesaid decisions may be referred to.

In Sant Ram Sharma (supra) it was held as follows:-

"7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and

WA 166/2019 Page - 7 of 11 supplement the rules and issue instructions not inconsistent with the rules already framed."

The Hon'ble Supreme Court in H.R. Patankar (supra) also held as

under:-

"4. ........................................................... There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a rule for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that even if there are no statutory rules in force for determining seniority in a Service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent. The Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the Service prior to April 11, 1958 on the one hand and officers appointed to the Service on or after that date on the other. ........................................"

The Apex Court in Izhar Hussain (supra) similarly held as under:-

"6. Shri Anil Dev Singh, appearing for the Union of India, contended that the Government of India has issued instructions dated 11-7-955 and 8-2-1956 which lay down that the retirement under Rule 2(2) of the Pension Rules should be effected when such retirement is necessary in public interest. The instructions being supplementary to the rule, according to him, the order of retirement has to be in "Public Interest" and as such there is no vice of arbitrariness in the rule.

We do not agree with this contention of the learned counsel. A statutory rule cannot be modified or amended by executive instructions. A valid rule having

WA 166/2019 Page - 8 of 11 some lacuna of gap can be supplemented by the executive instructions, but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions. The instructions can only supplement and not supplant the rule."

9. In the present case as noted above, it is very clear that in the pre-

amended Recruitment Rules there was no prescription as regards the

educational qualification for promotion to the post of Deputy Director. However,

that void was sought to be filled up by the aforesaid executive instruction

issued on 28.01.2014, for which amendment of the Recruitment Rules was not

obligatory, though, the Recruitment Rules were subsequently amended. As

such, this Court is satisfied that there was no illegality on the part of the

authorities in appointing the appellant on deputation and as such, in absorbing

his services vide order dated 21.12.2015.

10. Mr. Laskar, learned counsel for the respondent No.1/writ petitioner,

submits that the respondent No.1/writ petitioner otherwise, was not keen to

pursue the said writ petition for certain personal reasons and had accordingly

instructed his counsel, but it appears that the said instruction of the respondent

No.1 was not conveyed to the learned Single Judge and the learned Single

Judge went on to decide the matter on merit.

11. It has been submitted that in spite of the order passed by the learned

Single Judge in favour of the respondent No.1, the respondent No.1 is not

inclined to pursue the case against the present appellant and to that effect an

WA 166/2019 Page - 9 of 11 affidavit has been filed by the respondent No.1/writ petitioner on 05.12.2019

before this Court, wherein it has been mentioned in paragraphs 2 and 3 as

follows:-

"2. That without going to the merit to the writ appeal, the humble deponent begs to state that the Writ Petition being numbered W.P.(C) 319(AP)/2016 was filed by the deponent challenging the Order dated 21.12.2015 issued by the Commissioner (Social Justice, Empowerment and Tribunal Affairs), Government of Arunachal Pradesh, whereby the Appellant herein was permanently absorption to the post of Deputy Director in the Department of Social Justice, Empowerment and Tribal Affairs. The deponent further challenged the speaking order dated 15.04.2015 and the Office memorandum dated 28.01.2014 respectively issued by the Chief Secretary, Government of Arunachal Pradesh.

3. That the deponent begs to state that the deponent suffered from serious ailment, and admitted to the Hospital for which the deponent could not take updates about the pending of the writ petition. The deponent due to ailment, had instructed his engaged counsel to inform the Hon'ble Court that he is no more interested to pursue the writ petition filed by the deponent and further instructed to withdraw the writ petition pending before the Hon'ble court. As such deponent though that the writ petition was withdrawn by the learned engaged counsel of the deponent."

12. Accordingly, in the light of the above submission made, as well as the

legal principles discussed above, we set aside the impugned order dated

11.06.2019 passed by the learned Single Judge in WP(C) No.319(AP)/2016.

13. It has been submitted by the learned Senior counsel for the appellant

that the appellant is holding the post of Director on in-charge basis since

WA 166/2019 Page - 10 of 11 28.04.2017. It is for the respondent authorities to take necessary steps for

filling up the said post of Director on regular basis as per rules by considering

the case of the appellant also, as the impediment caused earlier as far as the

appellant is concerned by the impugned judgment and order dated 11.06.2019

passed in WP(C) No.319(AP)/2016 does not exist any longer.

14. The appeal is accordingly, allowed, however, without any cost.

                Sd/- Malasri Nandi                 Sd/- N. Kotiswar Singh
                         JUDGE                               JUDGE




Comparing Assistant




WA 166/2019                                                         Page - 11 of 11