WP(C) 1236/2005 BEFORE HON’BLE MR JUSTICE AMITAVA ROY The order dated 18.11.2004 passed by the Commissioner and Secret ary to the Govt. of Assam, Home(A) Department declining to consider the cases of the petitioners for promotion to the post of Deputy Director in the Assam Fore nsic Science Laboratory Service( hereinafter referred to as ’Service’) is the su bject matter of assailment in the instant proceeding. 2. While issuing notice on the petition ,this Court by order dated 21.2.2005 stayed the operation of the impugned order and further restrained th e respondents from effecting any promotion in the cadre of Deputy Director ,Fore nsic Science Laboratory without considering the cases of the petitioners in ter ms of the judgment and order dated 19.11.2003 passed by this Court in Writ Appea l No.469/2002. 3. I have heard Mr KH Choudhury,Senior Advocate assisted by Mr UK N air, Advocate for the petitioners, Mr P.Roy, learned State counsel for the offi cial respondents and Mr KP Sharma, Senior Advocate assisted by Mr H.Das, Advocat e for the respondent No.4. None represented the respondent No.5. 4. The pleaded facts need be chronicled in brief for better disce rnment of the arguments advanced. 5. The petitioners are presently serving as Senior Scientific Offi cers in the State Forensic Science Laboratory(hereinafter referred to as ’FSL’ for short) . Whereas, the petitioner No.1 was initially appointed as a Senior Sc ientific Assistant in the Serology Division of the said laboratory,the petitione r No.2 started his career as a Junior Scientific Officer therein with effect fr om 30.11.1979. In due course they were promoted to the posts of Senior Scientifi c Officer w.e.f. 16.6.82 and22.11.86 respectively which they are holding as on date. According to them, the respondent No.4 was initially appointed as a Scient ific Assistant in the Biology department of the FSL with effect from 27.9.1972 and was raised in ranks by promotion ultimately to the post of Senior Scientifi c officer on 6.6.1992. The petitioners therefore have asserted that in the post of Senior Scientific Officer, the respondent No.4 is junior to them. However, t he said respondent was promoted to the next higher post of Deputy Director on 24 .1.2003 without convening any meeting of the Departmental Promotion Committee un der Assam Forensic Science Laboratory Service Rules,1985 (hereinafter referred t o as the ’Rules’) in force. The petitioners have complained that as per the proviso to Rule 12 of the Rules , divisional seniority and not the over all seniority in the cadre was to be considered for promotion to the next higher post, as a result whereof, depending on the vacancy in any cadre in a particular Division, promotions were made on the basis of divisional seniority even if the beneficiary thereof was junior to his counter part in other Divisions in terms of over all seniority. Result antly, the seniormost in service in the same cadre in another Division , even if more than meritorious and suitable was not being considered for promotion i f no vacancy existed in the next higher cadre in his Division. 6. Being aggrieved by a lingering detrimental impact of the provi so to Rule 12, one Sri Bijoy Baruah and Sri Madhu Sarma then serving as Junior S cientific Officer and Junior Scientific Assistant in the Serology and Ballistic Division of the FSL respectively impugned the said provision and the consequential denial of their promotion to the next higher c adre. The two writ petitions were registered as Civil RuleNo.3022 of 1993 and 30 13 of 1993. This Court by judgment and order dated 27.9.1996 held against the conferment of promotion Division wise and directed the respondents to consider the cases of the petitioners therein for promotion with effect from the date whe n other persons were promoted. It was further directed that the promotion made would be accorded retrospective effect for the purpose of monetary benefit and future promotion to the higher posts. 7. The petitioners have averred that thereafter a provisional grad ation list of the personnel of the FSL was published on 12.8.1999 wherein the n ames of the incumbents were placed cadrewise based on the date of joining the po st in the cadre. According to the petitioners, they were placed at Sl Nos 13 and 14 and the respondent No.4 at Sl No.17 in the cadre of Senior Scientific Office r. The petitioners have claimed that in compliance of the directions contained in the judgment and order dated 27.9.96, promotions were thereafter accorded t o other officers of the FSL with retrospective effect and/or from the date of p romotion of their immediate junior who had been earlier promoted on Division wis e seniority. They also referred to WP( C) No.4240/1999 and WP( C)No.6430/2000 where directions similar to those in the judgment and order dated 27.9/1996 co ncurring therewith were issued. 8. The Respondent No.4 as well approached this Court with WP( C) No .5386/2000 seeking inter alia a direction to the respondents to consider his cas e for promotion to the post of Deputy Director, Biology Division under FSL. The petitioners herein were not impleaded as respondents therein. This Court by its judgment and order dated 22.4.2002 while rejecting his prayer for restraining the State authorities from amending the Rules in terms of the observations made in the judgment and order dated 27.9.96, directed consideration of his case for promotion along with other eligible persons under the exiting Rules subject to h is eligibility in accordance therewith. 9. Being aggrieved, the present petitioners preferred Writ Appeal No.4 69/2002 against the aforesaid determinations. By judgment and order 19.11.2003 , the appeal was disposed of. While the promotion of the respondent No.4 to the po st of Deputy Director (Biology), FSL occasioned meanwhile in the department on 22.1.2003 was left un-interfered, the learned Division Bench directed the Stat e respondents to consider the appellants/petitioners for promotion in the highe r grade with effect from the dates when their juniors were promoted. A provisional gradation list of the FSL personnel was thereafter published on 29 .7.2004 in which the names of the petitioners appeared at Sl Nos 2 and 3 in the cadre of Senior Scientific Officer. The respondent No.4 however, was incorpora ted in the cadre of Deputy Director. The petitioners submitted their objections. 10. In the meantime, the Rules had been amended with effect from 25.8.20 03, the emerging legislation being titled as Assam Forensic Science Laboratory Service(Amendment) Rules,2003 (hereinafter referred to as the ’Amended Rules’) .It was thereafter that the impugned order was passed which the petitioners com prehend is repugnant to the letter and spirit of the decisions of this Court rendered on 27.9.1996 and 19.11.2003 as above. 11. The State respondents in their counter have pleaded that as the respondent No.4 was the senior most Senior Scientific Officer in the Biology D ivision of the FSL with requisite qualifications for promotion to the cadre of D eputy Director for the said Division, in deference to the directions contained in the judgment and order dated 22.4.2002 in WP (C) No.5386/2000, he was elevate d to the said office. The answering respondents affirmed that while causing su ch promotion, Division wise seniority was acted upon in terms of the Rules. Th ey dismissed the provisional gradation list dated 12.8.1999 as inconsequential, the same being irrelevant in the face of the Rules in force at that point of ti me. They confirmed the amendment of the Rules with effect from 28.8.2003. They m aintained that the concept of over all seniority was entertained after the fr aming of the Amended Rules and accordingly a provisional gradation list of th e scientific personnel of the FSL was published on 29.7.2004 which is under f inalization on the basis of the objections received. The answering respondents h ave averred that on a consideration of the roster points under the Assam Schedul ed Castes and Scheduled Tribes Reservation of Vacancies in Services and Posts ) Act, 1978 , the petitioners are not eligible for promotion as per the provisi onal gradation list dated 29.7.2004. According to them, after the finalization o f the gradation list the issue of promotion of the petitioners would be taken in to consideration as per the provisions of the Amended Rules. 12. The respondent No.4 in his affidavit denied that he is junior to the petitioners in the cadre of Senior Scientific Officer, the seniority at the relevant point of time being reckoned division wise. According to him, as he b elongs to the Biology Division, whereas the petitioners were incumbents in the S erology Division of the FSL , the question of over all departmental seniority do es not arise and their claim of seniority over him is untenable. He reiterated that his promotion to the post of Deputy Director was in compliance of the ju dgment and order dated 22.4.2002 passed in WP( C) No. 5386/2000 and as per the p rovisions of the Rules as in force at that point of time. He pointed out that in the provisional gradation list of 12.8.1999 , he was placed at Sl Nos 16 an d not 17 as averred by the petitioners. He , however, insisted that the said pr ovisional gradation list was not enforceable without the amendment of Rule 12 of the Rules. He also confirmed the amendment of the Rules with effect from 28.8. 2003 providing over all seniority instead of division wise seniority as the b asis for promotion. He claimed that his promotion to the post of Deputy Directo r in absence of any challenge to the determination in Writ Appeal No.469/2002 h as become final and unassailable. He denied the complaint of State respondents ’ favoured disposition towards him. 13. In his counter, the respondent No.5 also a Senior Scientific Off icer with the FSL has claimed himself to be the senior most scheduled caste ca ndidate due for promotion to the post of Deputy Director and insisted on prefer ence in the matter due to his reserved category status. 14. Mr Choudhury has assertively urged that this Court by its jud gment and order dated 19.11.2003 in Writ Appeal No.469/2002 having directed the State respondents to consider the case of the petitioners for promotion to the next higher cadre with effect from the dates when their juniors were promote d, the impugned order is manifestly inconsistent therewith and is liable to be adjudged illegal, null and void. The exercise to be undertaken by the official r espondents in terms of the above directions not being contingent on the amendme nt of the Rules and instead essentially founded on the decision dated 27.9.96 in Civil Rule Nos 3022 and 3013 of 1993,the purported justifications proffered in the impugned order are wholly illogical ,irrational and indefensible and thu s liable to be rejected in limine, he urged. The learned Senior counsel insist ed that as no acceptable reason exists for denying the petitioners’ claim for their promotion to the next higher post of Deputy Director , a writ of mandamus ought to be issued for consideration of their cases therefor with effect from the dates on which their juniors were elevated on the basis of over all senio rity position prior to the amended Rules. 15. Mr Roy, learned State counsel in reply, has urged that as the op erative portion of the judgment and order dated 19.11.2003 in the Writ Appeal r equired the respondents to consider the cases of the petitioners for promotion a fter effecting amendment to the Rules, the impugned order cannot be faulted wit h. He assured that on finalization of the gradation list and determination of t he over all seniority on the basis thereof, the cases of the petitioners would be considered for promotion with effect from the dates on which their juniors if any had been so promoted. The State counsel prayed for six(6) months time to administer the exercise. The learned State counsel on queried has submitted o n instructions that at present there are six vacancies in the post of Deputy D irector. 16. Mr Sarma has argued that as the respondent No.4 had approached this Court being aggrieved by the decision of the State respondents to defer hi s promotion till after the amendment of the Rules, the petitioners herein were n ot necessary parties in his petition. He pointed out that the Division Bench in the aforementioned Writ Appeal had neither held the respondent No.4 to be junio r to the petitioners ,nor directed their promotion with effect from the date on which he was so promoted. He endorsed the stand of the learned State counsel th at the gradation list dated 12.8.1999 was immaterial and that the learned Divisi on Bench had directed consideration of the petitioners’ case only after the Rul es were amended. According to Mr Sarma there are five vacancies in the cadre of Deputy Director and the petitioners are within the zone of consideration for pr omotion thereto. He has further apprised this Court that the post of Joint Direc tor is presently vacant and that the respondent No.4 is at Sl. No.4 in the panel of eligible candidates therefor. 17. The contesting pleadings and the competing arguments have been duly noticed. A brief reference to Rules 12 and 13 of the Rules at the thresho ld is considered expedient. Rule 12(1) provided that subject to suitability as may be decided by the Selection Board and by the appointing authority as setfo rth in Rule 13 and also subject to the qualifications and experience as prescrib ed, an officer would be eligible for promotion to one cadre to another. The feed er and the promotional posts were enumerated therein . Thereunder promotion fro m the post of Senior Scientific Officer was to be accorded to that of Assistant Director (re designated as Deputy Director). The proviso to Rule 12(1) however mandated that the promotional prospects of the personnel from Junior Scientific Officer to the rank of Assistant Director( now Deputy Director) would be restra ined to one discipline /division only and that changeover from one disciplin e/ division to another would not be allowed. It insisted upon division wise and not over all seniority for promotion to the rank of Assistant Director( pres ently Deputy Director ). The rest of the said Rules being not any definitive be aring is not being referred to. 18. Rule 13 which incorporated the general procedure for promotion stipulated that before the end of each year, the Appointing Authority would ma ke an assessment of the likely number of vacancies to be filled up by promoti on in the next year in each cadre. The Appointing Authority was required to fu rnish to the Selection Board the documents and informations pertaining to th e number of vacancies ,the inter se seniority , norms of eligibility for promoti on , character rolls etc. of all officers eligible for promotion in order of se niority. The Selection Board was to recommend to the Appointing Authority a lis t of officers about double the probable number of vacancies in order of pref erence found suitable for promotion in respect of each cadre. 19. The factual background as evident is admitted. Responding the cha llenge to the proviso to Rule 12 of the Rules in Civil Rule Nos 3022/1993 and 3 013/1993 posing legislatively ordained yet insuperable impediment for promotion on the basis of over all seniority in service, this Court on an analytical sc rutiny of the scheme for promotion embodied in Rules 12 and 13 thereof held tha t there was no sanction behind the creation of divisions and seniority base d thereon. It propounded that while it was open to the government to const itute as many cadres in any particular service as it may choose according to th e administrative convenience and expedience , once having constituted such a cadre, it cannot be allowed to artificially divided or sub divide the same a s was sought to be caused by the proviso to Rule 12. Juxtaposing the said provis o to Rule 12 of the Rules, this Court while referring to the apparent inconsiste ncy observed that had it been the intention of the rule makers to provide a scheme of promotion confined to particular division, there was nothing to preve nt the authority concerned from suitably wording Rule 13(2) (b) comprehending the list of officers in order of seniority eligible for promotion to different cadres and no division as sought to be suggested by the proviso. The following operative directions were thus issued : In view of the foregoing discussion , these petitions deserve to be all owed and they are accordingly allowed. The petitioners are held to be entitled to promotion as claimed by them and the respondents are directed to consider th eir case for such promotion with effect from the date when other persons were pr omoted, which shall be retrospectively operative for the purpose of monetary ben efits and future promotions to higher posts, as may be accrued to them. Parties are to bear their own costs. 20. Admittedly, this determination has remained unassailed till date and has therefore attained finality. Not only on the basis of this the petition ers therein have been promoted to the next higher posts, this Court in writ peti tions filed subsequently being WP( C) Nos .4240/1999 and WP( C) No.6430/2000 ha s subscribed to the determination and conclusions recorded therein. A plain reading of the judgment and order dated 27.9.1996 demonstrates that thereby th e proviso to Rule 12 was read down to harmonize it with the content and purpor t of Rule 13 which envisaged consideration for promotion on the basis of over all seniority subject to other conditions of eligibility. 21. Obviously, in alignment with the said adjudication the provision al gradation list dated 12.8.1999 was published enlisting the petitioners and the respondent No.4 at serial Nos 13,14 and16 in the cadre of Senior Scientific Officers. There is no dispute that gauged by length of service of the said incu mbents in the said cadre, the petitioners are senior to the respondent No.4. As the State respondents contemplated amendment of the Rules in terms of the decis ion dated 27.9.96 and proposed to defer the consideration of the respondent No.4 for promotion to the post of Deputy Director, the latter approached this Court with WP( C) No.5386/2000. Though he prayed as well for restraining the State respondents against the proposed amendment, this Court while rejecting that pray er of his ,directed consideration of his case for promotion under the un amende d Rules if found otherwise suitable therefor. It negated the plea of deferment of such consideration till after the amendment of the Rules.The view expressed i n the decision dated 27.9.96 was not disapproved. The respondent No.4 subseque ntly was promoted to the post of Deputy Director( Biology) Division of FSL on 22 .1.2003. 22. In Writ Appeal No.469/2002 preferred by the present petitioner s being aggrieved by this Court’s direction for consideration of the case of th e respondent No.4 for promotion, a Division Bench of this Court on 19.11.2003 w hile sustaining his promotion held that the petitioners ought to have been cons idered for promotion first in terms of the directions issued in the judgment an d order dated 27.9.1996 after effecting necessary amendments. While noticing that the said decision in the meantime had attained finality and followed by thi s Court in the subsequent proceedings on the same issue, their Lordships ruled that the relief extendable to the petitioners was that they would be entitled t o the promotion with effect from the date of promotion of their juniors with all financial benefits subject to suitability. The concluding paragraph carrying t he directions to be implemented is extracted hereinbelow :- Hence, we dispose of the appeal at hand with the direction to the Stat e Respondents to consider the case of the appellants for promotion to the next h igher grade with effect from the dates when their juniors were promoted. Further , it is desired that the repugnancy brought in by proviso to Rule 12 should be removed immediately in accordance with the earlier judgment in Writ Petition (C ) No.3022 and 3013 of 1993 by effecting appropriate amendment to avoid conflicti ng orders in future. Conflicting provisions in the Rules cannot co-exist for all time to come. The text of the aforesaid judgment proclaims the petitioners’ claim of seniori ty over the respondent No.4 and their insistence for promotion before him. Th eir Lordships in the Division Bench noticed that the direction embodied in the judgment and order dated 27.9.96 were in supersession of the proviso to Rule 12 which provided for division wise promotion contra the concept of cadre seniorit y as a whole as envisaged in the Rules. The learned Bench though observed that the promotion of the Respondent No.4 under the unamended Rules was not in comp liance of the said decision, left it undisturbed. 23. The direction contained in the penultimate paragraph of the jud gment and order of the learned Division Bench logically has to be construed in the above background. On a reading between the lines thereof, it is not discern ible that the consideration of the case of the petitioners for promotion to th e next higher grade with effect from the date when their juniors were promoted, was conditional on the amendment of the Rules. Differently put , the amendment of the Rules to efface the repugnancy noticed in the judgment and order dated 27 .9.96 was not viewed to be a condition precedent for such consideration. This is more so, as it has been pleaded at the bar that though on the date of the dis posal of the appeal, the amended Rules had come into existence, it had not been brought to the notice of the Lordships in the Division Bench. 24. Noticeably, by the amendment so effected, an officer in the se rvice subject to suitability would now be eligible for promotion to the next hi gher cadre irrespective of his Division, on the basis of his over all seniorit y in the cadre if possessed of the requisite qualifications with the subjec ts prescribed for the post/Division concerned. The amended proviso to Rule 12 ( 2) prescribes that an officer suitable for promotion on the basis of overall s eniority, may be promoted to the next higher cadre of the service even by trans fer or re-allotment of a post to his Division if he does not possess the requi site qualification to hold the vacant post of the other Division. Suitable amen dments in Rule 13 have also been correspondingly made. The amendments as above in essence , legislate the views expressed by this Court in its decision on 2 7.9.96 obliterating the deciphered incongruities in the promotional scheme und er the un amended Rules. 25. The amendments as the records reveal took seven years to fructif y reckoned from the date of disposal of Civil Rule Nos .3022 and 3013/1993 for which the petitioners cannot be penalized. Indisputably, acting on the said v erdict , some personnel of the FSL similarly situated like the petitioners have been promoted on the basis of over all seniority sans, the amendment of the Rul es. The promotion of the respondent No.4 on the basis of the unamended Rules a cting on the Divisionwise seniority does not per se in the above factual backdro p either efface the judgment and order dated 27.9.96 or the petitioners’ claim for consideration for promotion on the basis thereof read with the decision in the appeal. 26. The pleaded stand of the respondents besides being unintelligi ble and inconsistent projects a total misinterpretation of the adjudication of t his Court. The impugned order is based on incorrect factual presuppositions. No t only the