Page No.# 1/6 vs The State Of Assam And 4 Ors
2025 Latest Caselaw 3485 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And 4 Ors on 25 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                 Page No.# 1/6

GAHC010013612024




                                                           2025:GAU-AS:2266

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/363/2024

         PHOTICK CHANDRA NEOG @ PHATIK NEOG
         S/O LATE BHULA NATH NEOG, R/O LAIPULI, PANITULA, NEAR CITY
         DHABA, TINSUKIA, DIST-TINSUKIA, ASSAM, PIN-786183



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         REPRESENTED BY LEGAL REMEMBRANCER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, JUDICIAL DEPARTMENT, DISPUR, GUWAHATI,
         ASSAM, PIN-781006

         2:THE GAUHATI HIGH COURT
          REPRESENTED BY THE REGISTRAR GENERAL
          GUWAHATI
         ASSAM
          PIN-781001

         3:THE REGISTRAR GENERAL
          GAUHATI HIGH COURT
          GUWAHATI
         ASSAM
          PIN-781001

         4:THE REGISTRAR (VIGILANCE)
          GAUHATI HIGH COURT
          GUWAHATI
         ASSAM
          PIN-781001

         5:THE DISTRICT AND SESSIONS JUDGE
         TINSUKIA
          P.O. AND P.S.-TINSUKIA
                                                                        Page No.# 2/6

           DIST-TINSUKIA
           ASSAM
           PIN-78612




                                   BEFORE
                HON'BLE MR. JUSTICE DEVASHIS BARUAH

      Advocates for the petitioner(s)   :       Mr. Bhaskar Dutta
                                                Senior Advocate
                                                Mr. S Deka

      Advocates for the respondent(s) :         Mr. HK Das

Standing Counsel Gauhati High Court

Date of hearing & judgment : 25.02.2025

JUDGMENT & ORDER(ORAL)

Heard Mr. Bhaskar Dutta, the learned senior counsel assisted by Mr. S Deka, the learned counsel appearing on behalf of the petitioner. Mr. HK Das, the learned counsel appears on behalf of the Gauhati High Court.

2. The petitioner herein had assailed the advertisement dated 10.01.2024 issued by the learned District & Sessions Judge Tinsukia whereby the applications were invited from eligible and experienced employees of the District & Sessions Judge establishment, Assam to fill up the vacant post of Chief Administrative Officer in the Establishment of the District & Sessions Judge, Tinsukia. It is the specific case of the petitioner that on the earlier occasion an advertisement was issued on 27.07.2023, in respect to the same post, wherein amongst the other eligibility criteria, it was also mentioned that the candidate must be a graduate. However, the impugned advertisement which was issued Page No.# 3/6

on 10.01.2024 does not contain the eligibility condition that the candidate must be a graduate.

3. The learned senior counsel appearing on behalf of the petitioner submitted that even for the post of Process Server, there is a requirement that the candidate has to be a graduate, whereas for the post of the Chief Administrative Officer, who is a highest in the ministerial cadre in the Establishment of the District & Sessions Judge, there is no requirement for having the eligibility condition of having a graduate. He, therefore, submits that the impugned advertisement is required to be interfered with.

4. Per contra, Mr. HK Das, the learned Standing Counsel appearing on behalf of the Gauhati High Court submitted that a perusal of the Assam District and Sessions Judges Establishment (Ministerial) Service Rules, 1987 (for short, "the Rules of 1987) and, more particularly, Rule 6(1) would show that for the post of Head Sheristadar, which is now re-designated as Chief Administrative Officer, the eligibility is only that he has to be a Sheristadar of Additional District & Sessions Judge or a Head Assistant in the District & Sessions Judges Establishment for atleast 5(five) years. In addition to that, it has been mentioned that the criteria for selection shall be seniority-cum-merit. He, therefore, submitted that as per Rule 6(1) of the Rules of 1987, there is no requirement that the candidate has to be a graduate. Be that as it may, the learned counsel further submitted that although in the draft Rules which were framed in the year 2018, the educational qualification is graduate, but, however, these Rules have not attained the status of being made under Article 309 of the Constitution, in view of the fact that the Government had not yet taken steps to make the Draft Rules in terms with Article 309 of the Constitution. In addition to Page No.# 4/6

that, the learned Standing Counsel submits that the petitioner herein is presently working in the post of the Sheristadar in the Office of the learned Civil Judge (Senior Division) at Tinsukia and hence cannot be a 'person aggrieved', taking into account that he does not have the experience which is required in terms with Rule 6(1) of the Rules of 1987.

5. Upon hearing the learned counsel appearing on behalf of the parties, this Court had duly taken note of Rule 6(1) as well as Rule 6(2) of the Rules of 1987, which is for the sake of convenience is reproduced hereinunder:

"6. Recruitment to the service shall be made by the appointing authority

according to the procedure laid down below-

(1). Sheristadar of District & Sessions Judge - By selection from amongst the persons who must have served continuously as Sheristadar of Additional District & Sessions Judge or as Head Assistant in the District & Sessions Judges Establishment at least for 5 years.

(2). Head Assistant & Sheristadar of Additional District & Sessions Judge

- By selection from amongst the persons who must have served as Supervisory Assistant or a Sheristadar of Munsiff or a Sheristadar of Asstt.

District & Sessions Judge or Upper Division Assistant continuously for 3 years in the District & Sessions Judges Establishment."

6. From a perusal of the above-quoted Rules, it would be seen that for the post of Sheristadar in the District & Sessions Judge which is now re-designated as the post of the Chief Administrative Officer, the feeder cadre to the said posts are those persons, who have served continuously as Sheristadar of the Additional District & Sessions Judge or as Head Assistant in the District & Sessions Judge Establishment at least for 5(five) years. The petitioner Page No.# 5/6

admittedly is not a Sheristadar of the Additional District & Sessions Judge or had worked as a Head Assistant in the District & Sessions Judge Establishment for five years. The petitioner presently as averred in the writ petition is a Sheristadar of the Assistant District & Sessions Judge, which is equivalent to the office of the Civil Judge (Senior Division) and, as such, the promotional post of the petitioner would at best be the post of Head Assistant and Sheristadar of the Additional District & Sessions Judge.

7. Considering the above, this Court is of the opinion that the petitioner herein is not a 'person aggrieved' to challenge the advertisement dated 10.01.2024.

8. Furthermore, this Court had duly taken note of the judgment of the Supreme Court in the case of Vimal Kumari Vs. the State of Haryana, reported in (1998) 4 SCC 114, wherein the Supreme Court while taking into consideration that the Draft Rules in the case before the Supreme Court though prepared in the year 1983, but lying in nascent stage since then observed that it was not open to the High Court to invoke the provisions of the Draft Rules. In the present case before this Court, the Draft Rules were made in the year 2018 and till date even after a period of 7(seven) years, the State Government had not made it. Under such circumstances, to apply the provisions of the Draft Rules, which the petitioner, insist would be proper.

9. Before concluding, this Court further finds it relevant to take note of another submission made by the learned Senior Counsel appearing on behalf of the petitioner that in respect to other advertisements issued by the other District & Sessions Judges for the post of Sheristadar of the District & Sessions Page No.# 6/6

Judges Establishment, which is re-designated as the post of Chief Administrative Officer, the educational qualification of graduate had been mentioned. It is the opinion of this Court the said aspect does not touch on the present lis, for which, this Court would not like to opine in that regard.

10. Considering the above, the writ petition stands dismissed.

11. Interim order, if any, stands vacated.

JUDGE

Comparing Assistant