Md. Raisul Islam & Ors vs Gokul Mohan Hazarika & Ors

1. On the request of the Government of Assam to select candidates by way of direct recruitment for filling up 30 posts in each category of ACS Class-I and ACS Class-II, the Assam Public Service 2 Commission, hereinafter referred to as `the ASPC', published an advertisement on 22nd May, 1984, for the aforesaid purpose in terms of Rule 4 of the Assam Civil Services (Class-I) Rules, 1960. Subsequently, the Government of Assam informed the APSC on 24th November, 1984, that a decision had been taken to relax the upper age limit by two years. Accordingly, a revised advertisement was published by APSC on 28th November, 1984, incorporating the decision to relax the upper age limit by two years. Pursuant to the said advertisement, a written test was conducted by the APSC, as required under the aforesaid Rules, hereinafter referred to as `the 1960 Rules', between 5th June, 1984, to 1st August, 1985, and the results of the said written examination were declared on 22nd February, 1986. Vive voce test was thereafter conducted by the APSC from 25th April, 1986, to 30th May, 1986, in respect of those 3 candidates who had qualified in the written examination. Thereafter, the APSC sent its list of recommended candidates to the Government on 27th June, 1986, for appointment to ACS Class-I and ACS Class-II category officers.

(c) by selection, in special cases from among persons, other than members of the Assam Civil Service (Class-II) service in connection with the affairs of the Government;

4. As will be apparent from the above, under the unamended Rules, the number of persons to be recruited by way of promotion would be 50 per cent of the total number of vacancies to be filled in a year and the number of persons to be selected under 5 clause (c) in said cases was not to exceed 5 per cent of the total strength of the cadre at any time.

7. Pursuant to the aforesaid selection process, 129 ACS Class-II Officers, including the petitioners, were regularly promoted as ACS Class-I Officers on 11th September, 1986. Thereafter, on 22nd October, 1986, 45 ACS Class-I Officers, including the Respondents, were appointed by way of direct recruitment on the basis of the recommendation made by the APSC. On 16th December, 1989, as a matter of policy, the State Government merged the ACS Class-II Officers with ACS Class-I Officers in order to eliminate the ACS Class-II category. Pursuant thereto, on 1st January, 1993, a draft gradation list of ACS Class-I Officers was published by the State Government inviting objections thereto. In the said list, all 129 Officers promoted on 11th September, 1986, were shown as senior to the 45 ACS Class-I Officers, who 8 had been appointed by way of direct recruitment on various dates in the month of October, 1986.

8. Aggrieved by the above, the Respondent Nos.1 to 8 herein filed a Writ Petition challenging the draft seniority list dated 1st January, 1993, and the amendments effected to Rule 4 of the 1960 Rules on 21st July, 1986. It may not be out of place to take note at this stage of the fact that the appointments of the petitioners and other similarly situated promotees made vide notification dated 11th September, 1986, were not challenged in the Writ Petition, nor was the notice of the Writ Petition served on them, although, they were made parties to the proceedings. During the pendency of the Writ Petition, the State Government published the final seniority list of ACS Class-I Officers in which all the 129 promotees were shown to be senior to the 45 direct recruits. It is the petitioners' case that 9 the said seniority list was never challenged and had attained finality long ago.

9. On 26th June, 2003, the learned Single Judge of the High Court dismissed the Writ Petition holding that although the process of selection had been initiated long before the amendment of 1986, the Government had decided not to make any appointments till the Rules were amended. The Respondent Nos.1 to 8 thereupon filed a Writ Appeal before the Division Bench of the High Court which was allowed on 26th August, 2006, upon the finding that the seniority of direct recruits and promotees would be governed by the unamended Rules as the selection process was initiated prior to the 1986 amendments. The State Government was, accordingly, directed to fix the seniority of the promotees and direct recruits by applying the quota rule and to fix the seniority of all 45 direct recruits of 1986 just below the 45 promotees, who had been promoted 10 to ACS Class-I service. It is the petitioners' case that they had no knowledge about the Writ Appeal as they were not served with notice thereof. Review Petitions Nos.92 and 93 of 2006 were filed on 9th November, 2006, by 12 of the promotees/petitioners herein on the ground that they had not been served with notice of the Writ Appeal. Thereupon, the Division Bench on 13th September, 2006, issued notice on the Review Petitions and stayed the operation of the judgment and order passed on 26th August, 2006. Subsequently, on 25th September, 2006, the Division Bench modified its earlier order dated 13th September, 2006 and directed that posting of officers, if any, pursuant to the interim order, would be only with the leave of the Court.

28. We agree with the view taken by the High Court which has been reiterated by Mr. Goswami in keeping 29 with the well-established principle that once a process of selection is started on the basis of the existing Rules of recruitment, the said Rules will continue to govern the selection process, notwithstanding any amendment which may have been effected to the said Rules in the meantime.

29. The decision of the High Court does not, therefore, warrant any interference and the Special Leave Petition is, accordingly, dismissed, but, without any order as to costs.

________________J.

(ALTAMAS KABIR) ________________J.

(CYRIAC JOSEPH) New Delhi, Dated: July 06, 2010.

comprising His Lordship, and Hon'ble Mr. Justice Cyriac Joseph.

The Special Leave Petition is dismissed in terms of the signed judgment placed on the file.

(Signed Reportable judgment is placed on the file.) 31