Gauhati High Court
Page No.# 1/29 vs The State Of Assam And 9 Ors on 21 November, 2024
Page No.# 1/29
GAHC010174212023
2024:GAU-AS:11422
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4538/2023
SUMIT PAUL AND ANR
S/O- K.C. PAUL, VILL. AND P.O. IRONGMARA (NEAR ASSAM UNIVERSITY,
SILCHAR) LANE RADHA MADHAB ROAD-788001.
2: NEELAM SAIKIA
D/O- PITAMBAR SAIKIA
NEAR LGB COLLEGE
MISSION CHARIALI
PATIACHUBURI
TEZPUR-784001
VERSUS
THE STATE OF ASSAM AND 9 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
INFORMATION AND PUBLIC RELATIONS, P AND S DEPARTMENT, DISPUR,
GUWAHATI-6.
2:UNDER SECRETARY TO THE GOVT. OF ASSAM
INFORMATION AND PUBLIC RELATIONS
P AND S DEPARTMENT
DISPUR
GHY-6.
3:DIRECTOR
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS AND P AND S
DEPARTMENT
(DIPR)
GOVERNMENT OF ASSAM
LAST GATE
GHY-6.
4:REGISTRAR
Page No.# 2/29
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS AND P AND S
DEPARTMENT
(DIPR)
GOVERNMENT OF ASSAM
LAST GATE
GHY-6.
5:PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL DEPARTMENT
DISPUR
GHY-6.
6:SECRETARY
ASSAM PUBLIC SERVICE COMMISSION
JAWAHAR NAGAR
KHANAPARA-781022.
7:MOUCHUMI BHATTACHARYYA BARUAH
PRESS RESEARCH OFFICER (PRO)
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS AND P AND S
DEPARTMENT
(DIPR)
GOVERNMENT OF ASSAM
LAST GATE
GHY-6. ASSAM
8:HIMANGSHU LAHKAR
TRANSLATOR
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS AND P AND S
DEPARTMENT
(DIPR)
GOVERNMENT OF ASSAM
LAST GATE
GHY-6. ASSAM
9:MANOJ KALITA
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS AND P AND S
DEPARTMENT
(DIPR)
GOVERNMENT OF ASSAM
LAST GATE
GHY-6. ASSAM
10:RUBINA ISLAM
TRANSLATOR
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS AND P AND S
Page No.# 3/29
DEPARTMENT
(DIPR)
GOVERNMENT OF ASSAM
LAST GATE
GHY-6. ASSAM
11:RITUPARNA KATATI AGED ABOUT 44 YEARS
SON OF LATE BIRENDRA NATH KAKATI
S.S. ROAD
TOWN- ABHAYAPURI PS / PO- ABHAYAPURI DIST-BONGAIGAON PIN-
783384 ASSA
Advocate for the Petitioner : MR. A PHUKAN, MS S SARMA HAZARIKA
Advocate for the Respondent : GA, ASSAM, MR. A DAS (r-7),MS. M DEVI (r-7),MR. M DAS (r-
7),MR. K N CHOUDHURY (r-7),MR. K K KALITA (R-9,10),MR. D GOGOI (R-9,10),MR S
BORTHAKUR (R-9,10),MR H DAS (r-8),MS. S S SAIKIA (r-8),MR. M K SARMA (r-8),SC, APSC
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
Advocate for the petitioners : Mr. A. Phukan, Advocate
Advocate for the respondents : Mr. C.K.S. Baruah, GA, Assam (R1-5)
Mr. T.J. Mahanta, Sr. Advocate (R6)
Mr. P. Sarma, Advocate (R-6)
Mr. K.N. Choudhury, Sr. Advocate (R-7)
Mr. A. Das, Advocate (R-7)
Mr. M.K. Sharma, Advocate (R-8)
Mr. S. Borthakur, Advocate (R-9,10 &11)
Date of hearing & judgment : 21.11.2024
JUDGMENT & ORDER
Heard Mr. A. Phukan, learned counsel for the petitioners. Also heard Mr.
C.K.S. Baruah, learned Government Advocate, Assam appearing for the
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respondent Nos.1-5; Mr. T.J. Mahanta, learned Sr. Counsel assisted by Mr. P.
Sarma, learned counsel for the respondent No.6; Mr. K.N. Choudhury, learned
Sr. Counsel assisted by Mr. A. Das, learned counsel for the respondent No.7; Mr.
M.K. Sharma, learned counsel for the respondent No.8 as well as Mr. S.
Borthakur, learned counsel appearing for the respondent Nos.9, 10 & 11.
2. By way of this petition filed under Article 226 of the Constitution of India,
the petitioner is assailing the alleged arbitrary and illegal action of the
respondent authorities in not promoting the petitioners to the post of Junior
Information Officer (Class-III) in the Directorate of Information and Public
Relations and Printing and Press Department and instead promoting the
respondent No.7.
3. The case of the petitioners is that the petitioners are working as Librarians
in the Directorate of Information and Public Relations and Printing and Press
Department, Government of Assam in the State of Assam. Pursuant to an
Advertisement dated 30.10.2018, the petitioners applied for the said post of
Librarian and upon being selected on merit basis, their names were in the select
list dated 05.03.2019 and thereafter they were appointed and accordingly,
joined in service from 08.03.2019 and since then are serving in the said post.
4. It is the specific case of the petitioners that despite the petitioners being
available in the feeder post for promotion to the post of Junior Information
Officer, the respondent authorities in blatant violation of the Assam Information
and Public Relations Service Rules, 1986 (hereinafter referred to as the '1986
Rules') promoted the private respondent No.7, who is a Translator to the said
post of Junior Information Officer. Assailing the aforesaid promotion of the
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respondent No.7, the present writ petition has been filed.
5. Mr. A. Phukan, learned counsel for the petitioners submits that Rule 11(2)
(v) of the 1986 Rules specifically provides that for promotion from one cadre to
another cadre of service, more specifically, to be promoted to the post of Junior
Information Officer (Class-III), it shall be filled up from the post of Journalist,
Sub-Editor-cum-Proof Reader and Librarian, which are the feeder cadre posts.
He further submits that though the post of Translator is not one of the feeder
cadre post under the subject Rules, the respondent No.7, who is a Translator,
has been promoted to the post of Junior Information Officer. He accordingly
submits that the impugned said promotion is in total violation of the statutory
subject Rules.
6. He further submits that the petitioners possessing the necessary requisite
qualifications and experience for getting promotion to the post of Junior
Information Officer and having continuously serving without any break for more
than 5 years and their initial appointments having been made on the same date
with that of the respondent Nos. 7, 8, 9 and 10, i.e., 08.03.2019, except for
respondent No.11, who has been appointed later on 11.03.2019 and having
successfully undergone such departmental training and passed such
departmental examination, the respondent authorities ought have promoted the
petitioners to the post of Junior Information Officer. He further submits that the
act of the respondent authorities to promote the respondent No.7, who was
holding the post of Translator, when there was no provision in the subject Rules
for promotion from the post of Translator to the post of Junior Information
Officer, such promotion of the respondent No.7 is ex facie illegal, arbitrary and
de-hors the Rules.
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7. He further submits that appointment has to be made in accordance with
the Rules and the Rules of recruitment cannot be relaxed unless the
Recruitment Rules provided relaxation.
8. In support of the aforesaid submission he relies upon the following
decisions of the Apex Court-
(i) Syed Khalid Rizvi & Ors. Vs. Union of India, reported in(1993)
Suppl. 3 SCC 575;
(ii) Keshav Chandra Joshi & Ors. Vs. Union of India & Ors.,
reported in(1992) Suppl. (1) SCC 272;
(iii) Suraj Prakash Gupta & Ors. Vs. State of J&K & Ors., reported
in(2000) 7 SCC 561; and
(iv) E. Raghumani Sinha Vs. State of Assam in WP(C) 3655/2022.
9. Per contra, Mr. C.K.S. Baruah, learned Government Advocate for the
respondent Nos. 1-5 submits that the gradation list of Translator, Journalist,
Mising Journalist, Sub-Editor-cum-Proof Reader, Librarian, Proof Reader of the
Directorate of Information and Public Relations, Assam by order dated
13.12.2022 has been prepared on the basis of seniority and merit and such
preparation of gradation list has been a practice for decades. He further submits
that these posts are of same pay structure and the nature of work is also same.
He further submits that the petitioners are recruited with the incumbents
presently holding the post of Translator, Journalist, Sub-Editor-cum-Proof
Reader, Proof Reader, Mising Journalist through the same selection process
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completed on 2019 pursuant to Advertisement dated 30.10.2018. He further
submits that the pay scales of all these posts are of the same pay scale as per
the latest ROP. He accordingly submits that the Translator being equivalent to
the post of Journalists etc. which are the feeder posts under the subject Rules
for promotion to the post of Junior Information Officer, promotion from the said
post of Translator to the post of Junior Information Officer is permissible under
the subject Rules. He further submits that since decades, as and when there
were vacancies, persons holding the post of Translator were getting promotion
to the post of Junior Information Officer and hence, as per past practice
prevailing in the concerned Department, the impugned promotion warrants no
interference from this Court.
10. Mr. T.J. Mahanta, learned Sr. Counsel assisted by Mr. P. Sarma, learned
counsel for the respondent No.6similarly submitted that in terms of the
prevailing past practice in the subject Department, the impugned promotion is
legal and valid.
11. Mr. K.N. Choudhury, learned Sr. Counsel appearing for the respondent No.7
submits that Rule 3(1) of the 1986 Rules provides for various classes and cadres
out of which Rule 3(2) provides that the service may include a) any post
equivalent to a post in any of the cadres mentioned in Sub-Rule 1 and (b) any
cadre or post laid down by the Government to be included in a cadre of the
service. He accordingly submits that a cogent reading of Rule 11(2)(v) with Rule
3(2)(a)(b) would reveal that Rule 3(2)(a) visualizes a situation on the date when
the Rules came into force and in terms of Rule 3(2)(b) the State respondent by
way of an executive instruction take a decision to encadre any post as a feeder
post for promotion to any of the cadres mentioned in Sub-Rule (1) and (b). He
Page No.# 8/29
accordingly submits that the case of the respondent No.7 is covered under Rule
3(2)(b) as by way of an executive instruction the Government of Assam took a
conscious decision to encadre the post of Translator for promotion to the post of
Junior Information Officer. He further submits that under the Advertisement
dated 30.10.2018 pursuant to which both the petitioners as well as the
respondent No.7 were recruited to the post they are holding thereof would
reveal that the post of Translator, Journalist, Mising Journalist, Sub-Editor-cum-
Proof Reader, Librarian, Proof Reader are placed in the same cadre and there
was only one common selection for the various posts carrying similar scale of
pay. He accordingly submits that it is trite law that in feeder cadre, different
posts can be included. In support of the aforesaid submission, he relies upon
the decision of the Apex Court in the case of Union of India & Ors. Vs.
Mange Lal in Civil Appeal No.5006/2012.
12. He further submits that in the Final Select List dated 05.03.2019, the
respondent No.7 being at Sl. No.2, whereas the petitioners being at Sl. Nos.10
and 11, the promotion of the respondent No.7 was strictly in accordance with
Rule 12 of the 1986 Rules. He further submits that the respondent No.7 being
promoted on 12.04.2022, the writ petition having been filed on 05.08.2023 is hit
by delay and laches. In support of the aforesaid argument he relies upon the
decision of the Apex Court in the case of M/s Tilokchand Motichand & Ors.,
Vs. H.B. Munshi, Commissioner of Sales Tax, Bombay & Anr., reported in
AIR 1970 SC 898.
13. He further by relying upon the letters dated 16.08.1994 and 21.09.1994,
submits that the post of Translator is taken by the respondent authorities to be
equivalent to the post of Journalist, Sub-Editor-cum-Proof Reader and Librarians
Page No.# 9/29
which being the feeder post for promotion to the post of Junior Information
Officer, the promotion of the respondent No.7 is as per the said 1986 Rules.
14. He further submits that in terms of the long followed past practice, the
post of Translator is considered as a feeder post for promotion to the post of
Junior Information Officer. In support of the aforesaid submission, he relies
upon the decision of the Apex Court in the case of N. Suresh Nathan &Anr.
Vs. Union of India & Ors., reported in(1992) Suppl. 1 SCC 584.
15. Mr. M.K. Sharma, learned counsel for the respondent No.8 submits that the
post of Translator, Journalist, Sub-Editor-cum-Proof Reader, Proof Reader,
Librarian, Mising Journalist are treated by the employer as under same
group/cadre having similar pay structure and similar treatment in the
Directorate though their nature of work is different.
16. Mr. S. Borthakur, learned counsel for the respondent Nos. 9, 10 & 11
submits that a perusal of the Advertisement dated 30.10.2018 amply
demonstrates that the post of Translators, Journalists, Mising Journalists, Sub-
Editor-cum-Proof Reader, Librarian and Proof Reader were clubbed together and
results were also declared by clubbing the same together and therefore, it is the
past practice that has been going on for more than three decades to group
these posts together and by taking the entire posts as feeder cadre the
promotion to the cadre of Junior Information Officer has been made. He further
submits that the aforesaid practice has the sanction of the 1986 Rules.
17. I have heard the learned counsels for the parties and perused the
materials available on record including the citations submitted at the Bar.
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18. It would be apt to refer to the relevant provisions of the 1986 Rules before
averting to the contentious issues raised by the parties, which are reproduced
hereunder for ready reference:-
"3. Class, cadres, status.
(1) The service shall consist of the following classes and cadres:
(a) Class I. (Senior Grade). It shall consist of the cadre of
(i) Director of Information and public Relations/ Chief Information Officer;
(ii) Additional Director of Information and Public Relations.
....................................
....................................
(d) Class III. It shall consist of the cadre of Junior Information
Officer, which shall include Assistant Editor of publications, Assistant
Publicity Officer, Press Research Officer, Manager of Publications, Script
Writer, Publication Assistant, Sub-Divisional Information and Public
Relations Officer.
(2) The service may also include-
(a) any post equivalent to a post in any of the cadres mentioned in sub-R.
(1); and
(b)any cadre or post laid down by Government to be includes in a cadre
of the service."
"11. Promotion.
(1) Vacancies in the cadres of Additional Director, Joint Director, Deputy Director
in Class I and Information Office in Class II of the service, to the extent as
specified in sub-Rule (1) and (2) (a) of Rule 5 shall be filled by promotion in the
manner prescribed herein below.
(2) Subject to suitability as may be decided by the Commission, as set forth in
Page No.# 11/29
Rule 12 and also subject to possessing qualifications and experience as
prescribed hereinafter, an after shall be eligible for promotion from one cadre to
another of the service in the manner provided below:
(i) From Joint Director to Additional Director;
(ii) From Deputy Director/Research Officer to Joint Director;
(iii) From Senior Information Officer to Deputy Director/Research Officer;
(iv) From Joint Information Officer and Sub- Divisional Information and
Public Relations Officer to Senior Information Officer;
(v) From Journalist, sub-Editor-Cum-Proof Reader and Librarian to Junior
Information Officer.
(3) Subject to suitability, an officer shall be eligible for promotion if he
possesses the qualifications and experience as set forth below:
(a) He has rendered continuous service on the first January of the year of
promotion, for a period of-
(i) 3 years in the cadre of Joint Director for promotion to the cadre
of Additional Director;
(ii) 3 years in the cadre of Deputy Director for promotion to cadre
of Joint Director;
(iii) 5 years in the cadre of Senior Information Officer for promotion
to the cadre of Deputy Director;
(iv) 5 years in the cadre of Junior Information Officer/Sub-
Divisional Information and Public Relations Officer for promotion to
the cadre of Senior Information Officer.
(b) He has successfully undergone such training and passed such
departmental examination as may be prescribed by Government for the
purpose.
Page No.# 12/29
12. General procedure of promotion.
(1) Before the end of each year the Appointing Authority shall make an
assessment of the likely number of vacancies to be filled by promotion in
the next year in each cadre.
(2) The Appointing Authority shall then furnish to the Board the following
documents and information with regard to as many offences in order of
seniority as are eligible for promotion:
(a) Information about the number of vacancies and number of reserved
vacancies to be filled by promotion from members of Scheduled Castes,
Scheduled Tribes (Plain) and Scheduled Tribes (Hills) as per S. 5 of Assam
Schedule Castes and Schedule Tribes (Reservation of Vacancies in Service
and posts) Act, 1978.
(b) List of Officers in order of seniority, eligible for promotion (separate
lists for promotion to different cadres shall be furnished) indicating the
cadre to which the case of promotion is to be considered;
(c) Character rolls and personal files of the officers listed; and
(d) Any other documents and information as may be considered
necessary by the AppointingAuthority required by the Board.
(3) The Appointing Authority shall simultaneously request the Board to
recommend within one month a list of officers found suitable for
promotion on order of preference in respect of promotion to each of the
cadres in which recruitment is to be made by promotion.
(4) The selection shall be made on the basis of seniority- cum-merit in
case of promotion stated herein before.
(5) The Board, after examination of the documents and information
furnished by the Appointing Authority, shall recommended to the
Appointing Authority a list of officers about double the probable number
of vacancies, in order of preference, found suitable for promotion.
(6) The Appointing Authority, on receipt of the lists recommended by the
Board, shall-
(a) forward the lists to the Commission together with the information and
documents as referred to in sub-R. (2) of R. 12 with a request to approve
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the list;
(b) the commission shall consider the list recommended by the Board
together with the information and documents and such other documents
and information as may be required by the Commission and obtained
from the Appointing Authority. The Commission shall finally approve the
list with such modification as it may consider just and proper.
(7) The lists finally approved by the Commission shall be published by the
Appointing Authority in the Assam Gazette within 15 days from the date
of final approval.
(8) The selected lists shall remain valid for 12 calendar months from the
date of approval by the Commission.
(9) The promotion shall be in accordance with the lists finally approved
by the Commission."
13. Selection Board
The Board, as referred to in Rr. 12 and 13 shall consist of the following:
(1) for considering promotion to the cadre of Additional Director--
(i) Chief Secretary--Chairman.
(ii) One Commissioner of Divisions nominated by the Chief Secretary--
Member.
(iii) Secretary, Home (Publicity)--Member- Secretary.
(2) for considering promotion to the cadres of Joint Director, Deputy
Director, Research Officer, Senior Information Officer, Junior Information
Officer--
(a) (i) Secretary, Home--Chairman.
(ii) Secretary, Personnel or a representative of Personnel Department not
below the rank of Deputy Secretary, nominated by Secretary, Personnel--
Member.
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(iii) Director of Information and Public Relations, Assam--Member.
(b) The Joint/Deputy Secretary, Home (Publicity) will act as Secretary of the
Board."
19. Rule 3(1) provides that Class-III consists of the cadre of Junior Information
Officer, which shall include Assistant Editor of Publications, Assistant Publicity
Officer, Press Research Officer, Manager of Publications, Script Writer,
Publication Assistant, Sub-Divisional Information & Public Relations Officer.
20. Rule 5, which provides for method for recruitment under Sub-Clause (2)
provides that recruitment to the cadre of Junior Information Officer in Class-III
shall be either made by promotion in accordance with Rule 11, 12 and 13 or by
direct recruitment in accordance with Rule 6 and 16 against 50% of the strength
of each cadre.
21. For the purpose of the present case, Rule 6 and 16 are not relevant. Rule
11 provides that an Officer shall be eligible for promotion from one cadre to
another of the service, inter alia, from Journalist, Sub-Editor-Cum-Proof Reader
and Librarian to Junior Information Officer.
22. Apparent that the feeder post from which an Officer is entitled to be
promoted to the post of Junior Information Officer under the 1986 Rules are
Journalist, Sub-Editor-Cum-Proof Reader and Librarian.
23. In the present case, the petitioners who are holding the post of Librarian
were eligible to be promoted to the post of Junior Information Officer in view of
the fact that the post of Librarian is a feeder post for promotion to the post of
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Junior Information Officer. However, since the respondent authorities instead
promoted respondent No.7, who was holding the post of Translator, which is not
a feeder post for promotion to the said post of Junior Information Officer, the
promotion of the respondent No.7 is accordingly assailed in this writ proceeding.
24. The issue that arises for consideration is whether promotion from the post
of Translator can be made to the post of Junior Information Officer under the
1986 Rules, when the Rules does not provide Translator as a feeder post for
promotion to the said post of Junior Information Officer.
25. It is apparent that in terms of Rule 11(2)(v), an Officer holding the post of
Journalist, Sub-Editor-Cum-Proof Reader and Librarian are only eligible for
promotion to the post of Junior Information Officer. However, it appears that
under Rule 3(2), the service may also include any post equivalent to a post in
any of the cadres mentioned in Sub-Rule (1) and any cadre or post laid down by
Government to be included in a cadre of the service. Thus, apparent in addition
to the cadre prescribed under the 1986 Rules, the State Government may either
include any post equivalent to a post in any of the cadres mentioned in Sub-
Rule (1) and any cadre or post laid down by the Government to be included in a
cadre of the service. Thus, under the 1986 Rules, the Government has the
power to either take any post equivalent to a post in any of the cadres
mentioned in Sub-Rule (1) of Rule 3 or take any cadre or post to be included in
a cadre of the service, though such cadre or post is not included in Rule 3(1) of
the 1986 Rules.
26. As such, in addition to the listed feeder post encadred under the 1986
Rules, any cadre or post may also be included by the State Government. Thus,
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under the 1986 Rules, promotion from one cadre to another need not be
restricted from the feeder post encadred therein and the State Government has
the power to include any other posts either equivalent or as laid down by the
State Government.
27. As a corollary to the above, the question that falls for determination is as
to whether the post of Translator is included by the State Government to be
included as a feeder post under the 1986 Rules for promotion to the post of
Junior Information Officer.
28. In this regard, apt to refer to the two letters dated 16.08.1994 and
21.09.1994 issued by the Director of Information and Public Relations, Assam.
The letter dated 16.08.1994 is reproduced hereunder for ready reference:-
"GOVERNMENT OF ASSAM
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS
GUWAHATI
NO. AE.05/91/97 Dated Dispur, the 16/8/1994.
From: Shri P. C. Bora
Director of Information and Public Relations, Assam, Dispur, Guwahati-6.
To :The Deputy Secretary to the Govt. of Assam,
Home (B) Deptt., Dispur, Guwahati -6.
Sub :ENCADREMENT OF TRANSLATOR.
Ref :Govt. letter NO. HMB.493/83/pt/74 dt. 22/7/94
Page No.# 17/29
Sir,
In Inviting a reference to the letter on the subject quoted above I have the
honour to state that the post of Translator of this Directorate were created and
permanently retained by the Govt. As such, the proposed encadrement of
Translator may perhaps be made by the Govt.
Moreover, it is requested kindly to enlighten this Directorate who will be the
appointing authority in respect of the posts of Translators in the Finance Budget
Department.
As regards framing of Service Rules in respect of non-gazetted post under
Directorate of Information and Public Relations, Assam, Dispur, Guwahati- 6 it is
stated that the posts of Translator, Sub-editor-cum-proof reader, Librarian are
grouped into Information Asstts and these are substantive posts. In the
Departmental service rule there is a provision for their promotion to the Junior
Information Officer group from the Information Asstt. group.
Yours faithfully,
Sd/- Illegible
Director of Information and Public Relations, Assam,
Dispur, Guwahati-6."
29. Apparent reading of the aforesaid letter dated 16.08.1994 that the post of
Translator, Sub-Editor-Cum-Proof Reader and Librarian are grouped together
into Information Assts. and these are considered as substantive posts for
promotion to the post of Junior Information Officer.
30. The letter dated 21.09.1994 is also reproduced hereunder for ready
reference:-
"GOVERNMENT OF ASSAM
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS
DISPUR::::: GUWAHATI
Page No.# 18/29
NO.AE.35/91/99, Dated Dispur, the 21st Sept'94.
From : Shri P. C. Bora,
Director of Information and Public Relations, Assam, Dispur,
Guwahati-6.
To,
The Deputy Secretary to the Govt. of Assam, Home (B) Deptt. Dispur,
Guwahati-6.
Sub : ENCADREMENT OF TRANSLATOR
Ref : Your No.HMB.493/83/Pt-1/77, dt.19.9.94.
Sir,
With reference to your letter on the subject cited above, I furnish below the
required clarifications.
a) Implementation of the recommendations of the Pay Commission, 1990 for
encadrement of Translator of the Finance (Budget) Deptt. with that of Public Relations
Deptt. is feasible. The scale of pay of the Translators of Finance Deptt. and that of this
department is the same. As all the posts of Translator in the Finance (Budget) Deptt.
have been lying vacant their seniority after encadrement will come under Translators
regularly appointed in this department.
b) Non-implementation of the recommendation of the Pay Commission after
getting no objection from the Administrative Deptt. is primarily due to (I) formal
notification from the Administrative Deptt. encadering the Translators of Finance
(Budget) Deptt. with that of Public Relations Deptt. has not yet been issued, and (II)
the Departmental Committee constituted by the Govt. to appoint non-gazetted
employees in the department has no power to select candidates for the post of
Translator as the scale of pay of the Translator is higher than the scale upto which
selection is empowered to the Committee.
c) R.O.P. Rules, 1990 (15 (II)-Page 12) has suggested encadrement of Translator
in the Finance (Budget) Deptt. only.
d) Rule 11(2) (V) of the Assam Information and Public Relations Service Rules, 1986
has clubbed together Journalist, Sub-editor cum Proof Reader and Librarian together
for promotion to the Junior Information Officer Group. The scale Of pay of the
Translator is also equivalent to that of these posts. As such their appointment will be
guided by the same rules. No separate service rule will be necessary in this regard.
Page No.# 19/29
A separate proposal suggesting to Govt. to empower the Departmental
Selection Committee to select Translators is being sent separately.
Yours faithfully,
Director of Information and Public Relations, Assam,
Dispur, Guwahati"
31. It further appears from the letter dated 21.09.1994 that since the scale of
pay of the post of Translator is equivalent to the post of Journalist, Sub-Editor-
Cum-Proof Reader and Librarian, the same are being clubbed together under
Rule 11(2)(v) of the 1986 Rules. Thus, it appears that the Government of Assam
by way of an executive instruction has taken the decision to encadre the post of
Translator and club the same with the post of Journalist, Sub-Editor-Cum-Proof
Reader and Librarian, which are the encadred feeder posts for promotion to the
post of Junior Information Officer. It further appears that the Government has
also decided that the appointment of Translator shall be guided by the 1986
Rules and that no separate Service Rules is necessary in that regard. Apparent
that the power of the State Government to take the post of Translator to be
included along with the feeder post in the 1986 Rules is provided under Rule
3(2)(b) of the 1986 Rules. Hence, the action of the State respondents in
promoting the respondent No.7, who is holding the post of Translator to the
post of Junior Information Officer, appears to be in conformity with the 1986
Rules.
32. That apart, a perusal of the Advertisement dated 30.10.2018 under which
admittedly both the petitioners as well as the respondent No.7 were recruited to
the various posts would reveal that the post of Translator, Journalist, Sub-Editor-
Page No.# 20/29
Cum-Proof Reader, Proof Reader, Librarian and Mising Journalist are placed in
the same cadre/bracket and there was only one common selection examination
for the various posts carrying similar scale of pay.
33. Pertinent also that in the Final Select List dated 05.03.2019, the
respondent No.7 is at Sl. No.2 and the petitioners are at Sl. Nos.10 and 11
respectively in orders of merit. Rule 12(4), which is quoted hereinabove, clearly
stipulates that the selection shall be made on the basis of seniority-cum-merit.
Furthermore, in the Final Gradation List dated 25.11.2020, the name of the
respondent No.7 is at Sl. No.7, whereas the names of the petitioners are at Sl.
Nos. 10 and 13 respectively. Similarly, in the Final Gradation List dated
28.10.2021, the name of the respondent No.7 is at Sl. No.7, whereas the names
of the petitioners are at Sl. No. 10 and 13 respectively. Thus, apparent that the
promotion of the respondent No.7 is in accordance with the said Rules.
34. Apt also to refer to the letter dated 09.03.2018, which has been brought on
record by the respondent No.7 by filing an additional affidavit, which is
reproduced hereunder for ready reference:-
"GOVERNMENT OF ASSAM
DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS,
ASSAM, DISPUR, GUWAHATI-6
No.AE.94/2015/257 Dated Dispur the 9th March, 2018
From: Shri Rajib Prakash Baruah, ACS
I/c Director of Information & Public Relations Assam, Dispur, Guwahati-6
To: The Deputy Secretary to the Govt. of Assam Information & Public
Relations Deptt.Dispur, Guwahati-6
Page No.# 21/29
Sub: Submission of proposal regarding recommendation of 7th Pay &
Productivity Pay Commission
Ref: Govt. letter No JPRD 01/2016/37, dt. 26.2.2018
Sir,
With reference to the Govt. letter on the subject cited above, I have the
honour to resubmit proposal regarding recommendation of 7th Pay &
Productivity Pay Commission for the posts of Journalist, Translator, Sub-Editor
cum Proof Reader and Proof Reader of this Directorate.
The posts of Journalist, Translator, Sub-Editor cum Proof Reader and
Proof Reader are one rank lower than that of Sub-Divisional Information and
Public Relations Officer (SDIPRO) in our Directorate. These posts are at the
bottom of the category of officers belonging to the same hierarchy up to the
post of Additional Director. When the Directorate was upgraded from Level-ll to
Level-l in April, 1998 the Govt. of Assam vide Finance Department Office
Memorandum No. FPC 45/98/2 dated 30-11-98 enhanced the scale of pay in the
posts up to the rank of District information & Public Relations Officer (DIPRO)
etc. depriving other non-ministerial posts of the benefit of pay-enhancement.
These posts were left untouched placing in lower pay bands with lower grade
pay compared to their counterparts of other Level--Directorates like Agriculture,
Animal Husbandry & Veterinary and Fishery etc. Details of the comparison (as
per ROP, 2010) are shown in the following table:
Department/Post Pre-Revised Scale Revised Scale Nature of Job/function
(PB+GP) (PB+GP)
Agriculture: Pay Band 4 Pay Band 4 The posts mentioned in
Development 12000-40000 30000-110000 column 1 are the feeder
Officers/Extension +5400 +12700 cadres of the Sub-Divisional
Level Officers of the
Officers
concerned departments. They
Animal Husbandry -do- -do- are promoted to the Sub-
and Veterinary: Divisional level on basis of
Extension Officers experience on seniority basis.
Page No.# 22/29
Fishery: -do- -do-
Fishery Extension
Officers The nature of job of these
feeder cadres is almost similar
Information & Pay Band 2 Pay Band 2 with that of the next in the
Public Relations: 5200- 14000-49000 hierarchy. As regards of the
Journalist, 20200+3300 +8700 Department of Information &
Translator, Sub- Public Relations, the nature of
Editor cum Proof job of these feeder cadre is
almost same with the next
Reader, Proof
higher post of Sub Divisional
Reader Information & Public Relations
Officers (SDIPRO) performing
field duties such as coverage
of meeting, events, various
public relations activities like
publication of booklet, leaflet
etc. translation of Budget
Speech of the Hon'ble Finance
Minister, Speeches of Hon'ble
Governor & Chief Minister
during Republic Day and
Independence Day etc. along
with election duties during
Parliamentary and Assembly
Elections at the State Election
Department and various such
activities.
The above table clearly shows that the posts of journalist, Translator, Sub-
Editor cum Proof Reader and Proof Reader are deprived of a higher Pay Band.
While the other non-ministerial promotional posts of other Level-I Directorates
were placed in Pay Band-4 with a Grade Pay of Rs. 5400, the above mentioned
posts of DIPR were placed in the Pay Band-2 with a nominal Grade Pay of Rs.
3300 only which is very unfortunate for them. But, responsibilities of the posts
of Journalist, Translator, Sub- Editor cum Proof Reader and Proof Reader are
much higher than that of similar posts of other departments.
It is seen that the 7th Pay & Productivity Pay Commission has agreed on
principle to enhance the Grade Pay of these posts from Rs. 3300/- to Rs.
Page No.# 23/29
4200/-. But, unfortunately it is not reflected in the ROP, whereas, as per the Pay
Commission's recommendation for the post of SDIPRO (just above the posts of
Journalist, Translator, Sub-Editor cum Proof Reader and Proof Reader), their pay
scale has been upgraded and it is reflected in the ROP also.
Based on these grounds very legitimate to reflect the Pay Commission's
recommendations for the posts of Journalist, Translator, Sub-Editor cum Proof
Reader and Proof Reader in the ROP, 2017. Therefore, it is requested to take
appropriate steps so that they can get the justice from your end by placing
them in Pay Band-3 with the scale of Rs. 22000-87000 plus Grade Pay of Rs.
9100 as per ROP, 2017.
In view of the above, I would therefore request the govt. to kindly take
necessary action on the cases for consideration of the same as deem fit as
proper.
Enc lo: 1. Copy of recommendation of the
7th Assam Pay & Productivity Pay Commission.
2. Copy of ROP 2017
Yours faithfully,
I/c Director of Information & Public Relations,
Assam, Dispur, Guwahati-6
Dated Dispur the March, 2018"
35. Reading of the aforesaid letter dated 09.03.2018, it appears that in column
1 under the heading "Department/Post", the name of "Information & Public
Relations" finds place and includes the post of Journalists, Translators, Sub-
Editor-Cum-Proof Reader, Proof Reader being clubbed together under the same
bracket. Further, in Column 4 under the heading "Nature of Job/Function", it is
clearly provided that the posts mentioned in column 1 are the feeder cadre of
the Sub-Divisional Level Officers of the concerned departments and they are
promoted to the sub-divisional level on the basis of experience on seniority basis
Page No.# 24/29
and the nature of job of these feeder cadres in the Department of Information
and Public Relations are almost same with the next higher post of Sub-Divisional
Information and Public Relations Officer performing filed duties etc. Pertinent
that Sub-Divisional Information and Public Relations Officer is included in the
cadre of Junior Information Officer. Therefore, apart from the letters dated
16.08.1994 and 21.09.1994, which amply demonstrates that the scale of pay of
Translators is equivalent to Journalists, Sub-Editor-Cum-Proof Reader and
Librarian and the post of Translator is taken for all intent and purposes included
in the feeder posts for promotion to the post of Junior Information Officer, the
letter dated 09.03.2019 further establishes that the post of Translator is also
included in the feeder cadre along with the post of Journalist, Sub-Editor-Cum-
Proof Reader and Librarian for promotion to the cadre of Junior Information
Officer.
36. Apt at this moment, also to refer to the affidavit-in-opposition filed on
behalf of the respondent No.3, wherein it is clearly averred that it is a long
followed past practice in the Department, wherein the incumbent holding the
post of Translator were being promoted to the post of Junior Information Officer
as and when vacancy arose. Paragraph Nos. 5 and 6 of the aforesaid affidavit-
in-opposition filed on behalf of the respondent No.3 on 05.12.2023 are
reproduced hereunder for ready reference:-
"5. That with regards to the paragraph No 3 and 4, the deponent humbly begs
to state that the gradation list of Translators, Journalists, Mising Journalist, Sub-
Editor-cum Proof Reade, Librarian, Proof Reader of the Directorate of
information and Public Relations, Assam issued vide office order
No.AE.35/2010/Pt./126 dtd. 25.11.20 and No.AE.35/2010/Pt-1/1 dtd. 13.12.22
has been prepared on the basis of seniority and merit. Preparation of the
Page No.# 25/29
gradation list like this has been a practice for decades. These posts are of same
pay structure and the nature of work is same for all these posts. It may also be
mentioned here that the petitioners, namely Shri Sumit Paul and Smti Neelam
Saikia, Librarian are recruited with the incumbents presently holding the posts
of Translator, Journalist. Sub-Editor-cum-Proof Reader, Proof Reader. Mising
Journalist through the same selection process completed in 2019. All these
posts were advertised vide advertisement No AE.22/2018/125 dtd. 30.10.2018.
All these posts are of same pay scale as per ROP 1964, ROP-1975, ROP 1979,
ROP 1981, ROP 1998, ROP 2017. The Report of Assam Pay Commission, 1979
also mentions at Para 7 of Page No 204 for Information & Public Relations
Department that "The Commission recommend a higher revised scale of
Rs.620-1315 for the post of Journalist, Translator, Librarian, Sub-Editor-Cum-
Proof Reader, in consideration of their duties and responsibilities and entry
qualification". Similarly, in the year 2012 vide advertisement No. AE 40/2012/8
dated 27.7.2012 and also in the year 2016 vide advertisement No
AE.34/2008/151 dated 22.01.2016, Translators, Journalists, Sub-Editor-cum-
Proof Readers, Proof Readers, Librarians were recruited together considering
the same nature of their duties and responsibilities. Promotions are done on the
recommendations of Departmental Promotion Committee on the basis of Rule 5
(2)(a) of the Assam Information and Public Relations Service Rule, 1986.
6. That with regards to the statement made in paragraph No- 5 and 6, the
deponent begs to state that though the post of Translator is not mentioned in
the Service Rule of the Assam Information & Public Relations Service Rule.
1986, the gradation lists of Translators, Journalist, Bodo Translator, Mising
Journalist, Bengali Translator, Sub-Editor-cum Proof Reader, Dimasa Translator,
Librarian of the Directorate of Information and Public Relations, Assam are
prepared putting these posts together for a long time on the basis of their
seniority and merit vide office order dtd. 25.05.93, No.AE.20/76/150 dtd.
21.10.1998, No.AE.46/85/56 dtd. 16.6.2008, Νο.ΑΕ.46/85 dtd.9.3.2010,
No.AE.35/2010/Pt./126 dtd. 25.11.20, No.AE.35/2010/Pt-/183 dtd. 28.10.2021
and Νο.ΑΕ. 42/2022/PU6 dtd. 16.02.2023.
The persons holding the post of Translator were getting promotions to the post
of Junior Information officer since decades as and when there were vacancies.
Accordingly, with such a long history of promotion from the post of translator in
Page No.# 26/29
this Directorate, the Respondent No.7 was also given promotion to the post of
Junior Information Officer and posted as Press Research Officer.
It may also be mentioned here that earlier this Directorate was under the
Home Department, Govt. of Assam and all promotions were done at Govt. level
in the Home Department. When DIPR was under Home Deptt, the Translators
along with Journalists, Sub- Editor-cum Proof Reader, and Librarians were
getting promotions to the posts of JIOS. The notifications or orders facilitating
promotion of Translator to Junior information Officer must have been issued on
the basis of some office records issued by Home Department. However, no such
notification or order could be traced out in our Directorate/ Department as in
the year 1997, the Information, Public Relations Department was created as a
separate Department by bifurcating the Home Department vide Administrative
Reforms and Training Department's order no AR.31/97/2 dated 1" Nov, 1997.
And after bifurcation, the Information and Public Relations Department
continued the same practice."
37. Thus, it is apparent that as per past practice, the post of Translator was
taken as a feeder post for promotion to the post of Junior Information Officer.
38. In N. Suresh Nathan (supra), the Apex Court has held that construction
of service rules is preferred to be in consonance with long standing practice
prevailing in the concerned department. Paragraph 4 and 5 of the aforesaid
judgement and order of the apex court are reproduced here under for ready
reference:-
"4. In our opinion, this appeal has to be allowed. There is sufficient material
including the admission of respondents diploma-holders that the practice
followed in the department for a long time was that in the case of diploma-
holder Junior Engineers who obtained the degree during ser- vice, the period of
three years' service in the grade for eligibility for promotion as degree-holders
commenced from the date of obtaining the degree and the earlier period of
service as diploma-holders was not counted for this purpose. This earlier
practice was clearly admitted by the respondents diploma-holders in para 5 of
their application made to the Tribunal at page 115 of the paper book. This also
Page No.# 27/29
appears to be the view of the Union Public Service Commission contained in
their letter dated December 6, 1968 extracted at pages 99-100 of the paper
book in the counter-affidavit of respondents 1 to 3. The real question,
therefore, is whether the construction made of this provision in the rules on
which the past practice extending over a long period is based is untenable to
require upsetting it. If the past practice is based on one of the possible
constructions which can be made of the rules then upsetting the same now
would not be appropriate. It is in this perspective that the question raised has
to be determined.
5. The Recruitment Rules for the post of Assistant Engineers in the PWD
(Annexure C) are at pages 57 to 59 of the paper book. Rule 7 lays down the
qualifications for direct recruitment from the two sources, namely, degree-
holders and diploma-holders with three years' professional experience. In other
words, a degree is equated to diploma with three years' professional
experience. Rule 11 provides for recruitment by promotion from the grade of
Section Officers now called Junior Engineers. There are two categories provided
therein one is of degree-holder Junior Engineers with three years' service in the
grade and the other is of diploma-holder Junior Engineers with six years' ser-
vice in the grade, the provision being for 50 per cent from each category. This
matches with Rule 7 wherein a degree is equated with diploma with three years'
professional experience. In the first category meant for degree-holders, it is
also provided that if degree-holders with three years' service in the grade are
not available in sufficient number, then diploma- holders with six years' service
in the grade may be considered in the category of degree-holders also for the
50 per cent vacancies meant for them. The entire scheme, therefore, does
indicate that the period of three years' service in the grade required for degree-
holders according to Rule 11 as the qualification for promotion in that category
must mean three years' service in the grade as a degree-holder and, therefore,
that period of three years can commence only from the date of obtaining the
degree and not earlier. The service in the grade as a diploma-holder prior to
obtaining the degree cannot be counted as service in the grade with a degree
for the purpose of three years' service as a degree-holder. The only question
before us is of the construction of the provision and not of the validity thereof
and, therefore, we are only required to construe the meaning of the provision.
In our opinion, the contention of the appel- lants degree-holders that the rules
must be construed to mean that the three years' service in the grade of a
degree-holder for the purpose of Rule 11 is three years from the date of
obtaining the degree is quite tenable and commends to us being in conformity
with the past practice followed consistently. It has also been so understood by
all concerned till the raising of the present controversy recently by the
Page No.# 28/29
respondents. The tribunal was, therefore, not justified in taking the contrary
view and unsettling the settled practice in the department."
39. In the present case, it appears that the 1986 Rules clearly provides the
power to the State respondents to include any post or cadre along with the
feeder post prescribed under the said Rules for promotion to the next cadre. It
further appears that the State Government in exercise of such powers has taken
the post of Translator to be included along with the feeder post for promotion to
the post of Junior Information Officer as evident from the letters dated
16.08.1994 and 21.09.1994. It further appears that in terms of the past practice
prevalent in the Department of Information and Public Relations, the post of
Translator at all relevant point of time was taken to be a feeder post for
promotion to the post of Junior Information Officer. Hence, it is manifest
established that the post of Translator is taken to be included in the feeder post
for promotion to the post of Junior Information Officer. That being so, this Court
is of the considered opinion that the impugned promotion of the respondent
No.7, who was holding the post of Translator to the post of Junior Information
Officer is valid, legal and in consonance with the 1986 Rules. The arguments of
the learned counsel appearing for the petitioners to the effect that the
impugned promotion is de-hors the rules is accordingly unsustainable and the
decisions cited in that regard are also not applicable in the facts of the instant
case. In light of the aforementioned facts and circumstances of the case, I do
not find any constitutional infirmity in the impugned Notification dated
12.04.2022 promoting the respondent no.7 to the post of Junior Information
Officer. As such, there is no merit in this writ petition. Hence, the writ petition
fails.
40. Resultantly the writ petition stands dismissed. No cost.
Page No.# 29/29
41. Interim order, if any, shall stand vacated.
JUDGE
Comparing Assistant
