Gauhati High Court
Dhirendra Patowary vs The State Of Assam And 15 Ors on 6 June, 2024
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/9
GAHC010080182024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/127/2024
DHIRENDRA PATOWARY
S/O LATE CHANDICHARAN PATWORY
R/O JOTIA MANDAKINI PATH
P.O.-ASSAM SACHIBALAYA
DIST-KAMRUP(M) PIN-781006
VERSUS
1.THE STATE OF ASSAM AND 15 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM DISPUR GUWAHATI-781006
2:THE COMMISSIONER AND SECRETARY
GOVT. OF ASSAM, GENERAL ADMINISTRATION DEPARTMENT
(ASSAM SECRETARIAT) DISPUR GUWAHATI-781006
3:THE COMMISSIONER AND SECRETARY
GOVT. OF ASSAM, PERSONNEL (B) DEPARTMENT
DISPUR GUWAHATI-781006
4:THE COMMISSIONER AND SECRETARY
GOVT. OF ASSAM, FINANCE DEPARTMENT
DISPUR GUWAHATI-781006
5:SAKAYAT HUSSAIN
C/O COMMISSIONER AND SECRETARY, G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
6:RAJGIRIH SING
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
Page No.# 2/9
7:AMULYA CHANDRA BORA
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
8:PRANAB KR. SAIKIA
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
9:SAWAN KUMAR RAI
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
10:SMTI MINA DUTTA
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
11:JAJNESWAR RAJKHOWA
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
12:SAMBHU NATH THAKURIA
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
13:MRINAL CHANDRA DAS
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
14:SMTI DIPALI BORA
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
15:MRS. HASINA BEGUM (R)
C/O COMMISSIONER AND SECRETARY G.A.D.
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
16:DULAL CH KALITA (R)
C/O COMMISSIONER AND SECRETARY G.A.D.
Page No.# 3/9
GOVT. OF ASSAM, ASSAM SECRETARIAT DISPUR GUWAHATI-6
PIN-781006 ASSAM
For the Appellant : Mr. B. Chetri, Advocate.
: Ms. D.J. Borah, Advocate.
: Mr. V. Basfore, Advocate.
For the Respondent(s) : Mr. R.K. Borah, Additional Senior Government Advocate,
Assam.
: Mr. P. Nayak, Standing Counsel, Finance and Standing
Counsel, GAD for respondent Nos.2 and 4.
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE SUMAN SHYAM
06.06.2024
(Vijay Bishnoi, CJ)
This writ appeal is filed by the appellant being aggrieved with the judgment dated
15.03.2024 passed by the learned Single Judge in WP(C) No.6008/2021, preferred on
behalf of the appellant and 16 other persons who are working as Senior Administrative
Assistants (in short, "Sr.AA") in various departments of the Assam Secretariat,
Government of Assam.
2. Though in the writ petition several reliefs were sought for, but during the course
of final hearing of the writ petition, the counsel for the petitioners confined his
arguments to the prayers A, C and D of the writ petition.
The prayers A, C and D made in WP(C) No.6008/2021 are quoted hereinunder:
"a) Directing Respondent Authorities to promote the Petitioners to the post of
Superintendent by relaxing the New Rules of 2019 as provided under
Rule 16 for educational qualification considering the undue hardship and
the retirement period of the petitioners as well as considering the fact that
petitioners' service was governed by the old rules, 1963 at the time of
entry in service without any discrimination and deprivation.
b) .........................
c) Further, set aside/quash the impugned order dated 30.10.2024
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(Annexure-U), whereby Respondent No.1 has rejected the claim of the
petitioners arbitrarily by disposing the representations without
considering the observation made by the Hon'ble Court in WP(C)
No.5136/2021 & the ors. and the Rule 16 of the new Rules, 2019;
d) The petitioners have submitted another application on 30.10.2021 for
relaxation of the rules for their educational qualification to which the
Hon'ble court may be pleased to direct the Respondents to consider their
Grievances with complete relief as prayed for;
3. The essential grievance raised by the petitioners in WP(C) No.6008/2021 is
regarding non-consideration of their cases for promotion to the next higher Grade
while granting relaxation as provided under Rule 16 of the Assam Secretariat Service
Rules, 2019 (hereinafter to be referred as "the Rules of 2019").
4. It appears that in relation to the promotion of the petitioners, 3 (three) writ
petitions were preferred before this Court. However, those writ petitions were disposed
of by this Court with a direction to the Chief Secretary to the Government of Assam to
consider the cases of the petitioners pursuant to the representations filed by them.
The Chief Secretary to the Government of Assam, vide order dated 30.10.2021,
dismissed the said representations filed by the writ petitioners and being aggrieved
with the same, WP(C) No.6008/2021 was preferred on behalf of the appellant and 16
other writ petitioners.
5. It is noticed that being aggrieved with the judgment dated 15.03.2024 passed
by the learned Single Judge in WP(C) No.6008/2021, the instant writ appeal is
preferred only on behalf of the petitioner No.1 of the aforesaid writ petition.
6. The learned Single Judge, after hearing the learned counsel for the parties and
after taking into consideration the arguments advanced on behalf of them, has
dismissed the said writ petition while recording the following reasons:-
"9. The determination:
"I. This court has given anxious consideration to the arguments advanced by
the learned counsel for the parties. Perused the decisions relied on. Also
perused the record produced by Mr. P. Nayak, learned counsel for the
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respondent.
II. The petitioners who were working in the post of Senior Administrative
Assistant in the Assam Secretariat claim for the next higher promotion to the
post of Superintendent.
III. The service condition of Superintendent and above, in the Secretariat, is
governed by the Assam Secretariat Service Rules, 1963.
IV. In terms of Rules, 1963, the Secretariat Service cadre constitutes of
Superintendent (Category III), Under Secretary (Category II), Deputy Secretary
(Category I) and each of the aforesaid categories forms an independent cadre.
Rule 8 of the 1963 Rules prescribes that recruitment to the post of
Superintendent shall be made by promotion on the basis of a select list to be
prepared in terms of Rule 10 of the said Rules 1963, from amongst the Upper
Division Assistant (UDA) in the Secretariat. The qualification prescribed is
rendering at least 5 years of service as UDA and confirmed as UDA.
V. The service condition up to the level of UDA in the Secretariat is governed
by the Assam Secretariat Subordinate Service Rules 1963 (hereinafter referred
to Subordinate Service rules 1963). In terms of rule 4 of the said rule, the service
consists of 3 categories of cadres:- (i) Upper Division Assistant, (ii) Lower
Division Assistant and (iii) Typist.
VI. Rule 25 of the Subordinate Service Rules, 1963 prescribe that subject to
availability of permanent vacancy, every member of service shall be confirmed
subject to the condition, firstly, the incumbent has completed at least one year
of service to the satisfaction of the appointing authority; secondly, he has
successfully undergone prescribed training and also passed the prescribed
departmental examination (Group B Training) and thirdly, the incumbent is
otherwise considered fit for confirmation by the appointing authority.
VII. Therefore, a person shall come into the zone of consideration for
promotion from UDA to Superintendent only after acquiring the qualification in
terms of Rule 8 of 1963 Rule.
VIII. The Rules 1963 was repealed by the Assam Secretariat Service Rules
2019, which came into effect on 13.06.2019 i.e. the date when the aforesaid
rule was notified in the official gazette.
IX. The required qualification for promotion to the Superintendent was also
amended and in addition to the requirement of experience of 5 years continuous
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service as Senior Administrative Assistant and passing of Group B training, it
was also mandated that a candidate must possess a graduate degree in any
stream from any recognized university. It is stated at the bar that such
prescription of qualification is under challenge and pending for determination
before the Division Bench.
X. Rule 16 of the Rules 2019 empowers the government to relax or dispense
with operation of any of the rules, when it causes undue hardship in any
particular case subject to the condition that such relaxation is necessary for
dealing with a case in just and equitable manner.
XI. As discussed hereinabove, the grievance of the petitioner is that though
they are having the other required qualification but they are not having the
required qualification of graduation in terms of the Rules 2019 and therefore, in
view of such hardship the rule ought to have been relaxed in case of the
petitioners inasmuch as similar relaxation have been granted to some similarly
situated persons.
XII. It is not in dispute that the Rule 2019 came into effect from 13.06.2019.
None of the petitioners had passed the essential qualification of group B training
examination in terms of the Rules, 1963 during the subsistence of the rule. Thus
they did not even acquire such a qualification. Therefore, they could not have
even within the zone of consideration for promotion at that stage.
XIII. Now coming to the new set of Rules 2019, this Court cannot be oblivious
of the settled propositions of law as held by the Hon'ble Apex Court in the case
of Dipak Agarwal Vs. State of UP reported in (2011) 6 SCC 725 that there is no
rule of universal application that vacancies must be necessarily filled up on the
basis of the law which existed on the date when they arose. It was further held
that a candidate has a right for consideration in the light of the existing rules,
which implies the 'rule in force' as on the date consideration takes place and
the right to be considered for promotion occurs on the date of consideration of
the eligible candidates. In the case of Dr. K Ramulu and another Vs.
Suryaprakash Rao reported in (1997) 3 SCC 59 it was also laid down that the
government is entitled to formulate a conscious policy decision not to fill up the
vacancies arising prior to the amendment of the rules and the employees does
not acquire any vested right to being considered for promotion in accordance
with the repealed rules in view of the policy decision taken by the government.
The only requirement is that the policy decision of the government must be fair
and reasonable and must be justified on the touchstone of Article 14 of the
Constitution of India. It is stated at the bar that the new rule prescribing the
higher qualification of graduation has already been put under challenge and
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pending consideration before the Division Bench and the validity of such rule
not being a consideration in the present litigation, this court is only to look into
the right of the petitioners under the new Rule 2019, including power of
relaxation and whether, while exercising such power of relaxation, the
petitioners had been discriminated.
XIV. From the records it is seen that the promotion of the respondents were
initiated and considered during the existence of the now repealed Rule, 1963
and on that day they had already acquired the qualification. In the factual
backdrop that on the date of consideration of the case of some of the
respondents, the said respondents had already acquired the essential
qualification and that the petitioners did not have the required qualification of
passing Group B Training, the petitioners cannot allege discrimination.
XV. Now coming to the case of some other respondents, who acquired the
required qualification prior to repeal of the Rule,1963. Their cases were not
considered for promotion and in the meantime the Rule 2019 was brought in
repealing the earlier Rule,1963 were considered and relaxations were granted
as regards the essential qualification of having graduation inasmuch as they
acquired the other qualification of passing group B training prior to coming into
force of the new rule. Therefore, these classes of employees are also not
similarly situated to the present petitioners inasmuch as the present petitioners
passed the group B training after coming into effect of Rule' 2019.
XVI. The record also reveals that the prayer of the petitioners for relaxation of
the rules was looked into by the competent authority in exercise of power under
16 of the Rules 2019. The record further reveals that a decision was taken that
the government is not inclined to give relaxation to all the candidates for the
reason that prescription of graduation for the next higher level was made taking
note of the need of modern day's requirements and the change in the nature of
work.
XVII. Relaxation of Rule cannot be prayed as a matter of right. If a conscious
decision is taken not to grant the relaxation, merely because rule permits
relaxation, no writ of mandamus can be issued directing competent authority to
grant relaxation in required qualification. In the case in hand, the respondents
have applied their mind to the given facts of the case and have taken a
conscious decision that as the Rule has mandated for a definite qualification,
such qualification shall not be relaxed in each and every case, otherwise the
enactment of the rule and the object thereof shall be defeated. Accordingly, it
cannot be said that the employer has not considered the case of the petitioner
for relaxation of the essential qualification of having a graduate degree.
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Therefore, such satisfaction of the employer should not be interfered with in
exercise of judicial power of this court in absence of any material resulting in
violation of any legal or constitutional right of the petitioner and any defect in
the decision making process.
XVIII. The argument that the impugned decision is not supported by the reason
is not tenable inasmuch as the order itself discloses the reason. Not only that,
the department has produced the record to show that there was application of
mind and there was a conscious decision as discussed herein above. This Court
in exercise of its certiorari jurisdiction can very well go through the record and
ascertain whether decision is backed by any reason or result of arbitrary action.
In the case in hand, this Court has gone into the record and found what is
discussed in the foregoing paragraph.
XIX. The judgments relied on by the learned Counsel for the petitioner are not
applicable in the context of the present case."
7. Assailing the impugned judgment dated 15.03.2024, Mr. B. Chetri, learned
counsel for the appellant has submitted that the persons junior to the appellant, who
were also not holding the requisite qualification as per the requirement mentioned in
the Rules of 2019, have also been promoted and this leads to violation of Article 14 of
the Constitution of India. Learned counsel for the appellant has pointed out that those
persons, details of whom have been provided in para No.6 of the writ petition, were
not having the qualification for being promoted on the post of Superintendent, but
have been provided appointment ignoring the case of the appellant who was also
standing on similar footing.
8. We have considered the above referred arguments and have also gone through
the material available on record as well as the impugned judgment passed by the
learned Single Judge.
9. The learned Single Judge, in para Nos.XIV and XV of the above quoted portion
of the impugned, judgment has specifically dealt with the issue and come to the
conclusion that the cases of those employees to whom promotion was granted, are
different from that of the petitioners inasmuch as the present petitioners passed the
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Group-B training after coming into effect of Rules of 2019 whereas the employees who
have been promoted had passed the Group-B Training prior to coming into effect of
the Rules of 2019 and their case for promotion was also considered prior to coming
into effect of these Rules and therefore, the petitioners of WP(C) No.6008/2021
cannot be treated as similarly situated to those employees.
10. It is an admitted position that the appellant passed the Group-B Training after
coming into force of the Rules of 2019 whereas those employees, with whom the
appellant is claiming parity, have passed Group-B Training before enforcement of the
Rules of 2019. It is also not in dispute that their cases were considered for promotion
before coming into force of the Rules of 2019. The appellant admittedly had not
passed the Group-B Training and had also not acquired Graduation qualification before
coming into force of the Rules of 2019.
11. Taking into consideration the above facts and circumstances of the case, we do
not find any case for interference with the impugned judgment dated 15.03.2024
passed by the learned Single Judge in WP(C) No.6008/2021. Hence, the instant writ
appeal is dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
