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Supreme Court of India
THE HONOURABLE MR. JUSTICE ALTAMAS KABIR & THE HONOURABLE MR. JUSTICE CYRIAC JOSEPH
Md. Raisul Islam & Others
Versus
Gokul Mohan Hazarika & Others
SPECIAL LEAVE PETITION (C) NO.19188 OF 2007
Decided on : 06-07-2010
(b) Service law – Recruitment – Selection process – Commences with advertisement – Concludes on making recommendations. (Para 24)
(c) Service law – Recruitment – Government can take a conscious decision not to fill up the vacancies – But not after commencing and concluding the selection process. (Para 26)
(1997) 3 SCC 59 – Distinguished
Service law – Recruitment – Selection process – Commenced under rules in existence at that time – Would continue under the same rules notwithstanding any amendment in the meantime. (Para 27)
(2006) 10 SCC 346; (1990) 3 SCC 157 – Relied upon impliedly
(2000) 7 SCC 561; (2007) 1 SCC 683 – Distinguished impliedly
Facts of the case:
Advertisement was issued on 22nd May, 1984 by ASPC for filling up 30 posts of ACS Class-I and ACS Class-II categories. Later, the Government of Assam relaxed 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, between 5th June, 1984, to 1st August, 1985, and the results of the said written examination were declared on 22nd February, 1986. After viva-voce test APSC sent its list of recommended candidates to the Government on 27th June, 1986.
On 21st July, 1986, by amendment the number of persons to be promoted from ACS Class-II to ACS Class I was left to be determined by the Governor and the earlier quota of 50 per cent for promotion was discontinued.
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. In the said list, all 129 Officers promoted on 11th September, 1986, were shown as senior to the 45 ACS Class-I Officers, who had been appointed by way of direct recruitment.
The Respondent Nos.1 to 8 filed a Writ Petition challenging the draft seniority list dated 1st January, 1993, and the amendments effected on 21st July, 1986.
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 Division Bench, while allowing the Writ Appeal, directed the authorities to ascertain the vacancies available in the year 1986 for recruitment from each source in terms of the quota fixed by Rule 4 of the 1960 Rules and to recast their seniority by rotating the vacancies following the quota and rota rules.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result:
Appeal dismissed.
Judgment :
ALTAMAS KABIR, J.
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 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 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.
2. On 21st July, 1986, vide Notification of even date, the Government of Assam amended the proviso to Rule 4(1) and Rule 4(1)(b) of the 1960 Rules whereby the number of persons to be promoted from ACS Class-II to ACS Class I was left to be determined by the Governor and the earlier quota of 50 per cent for promotion was discontinued.
3. At this stage, reference may be made to Rule 4 of the 1960 Rules, as it stood prior to the amendment of 21st July, 1986, namely,
"Rule 4(1). Recruitment to the service after the commencement of these Rules, shall be by the following methods, namely:
(a) by competitive examination conducted by Commission;
(b) by promotion of confirmed members of the ACS (Class-II) who have passed the prescribed departmental examination and successfully completed the prescribed training under Sub-Rule(3)of Rule 14 of ACS (Class-II) Rules, 1962; and
(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;
Provided that the number of persons recruited under Clause (b) shall be 50 per cent of the total number of vacancies to be filled in a year and the persons recruited under Clause (c) shall not in any year exceed two; provided further that the persons recruited under Clause (c) shall not at any time exceed 5 per cent of the total strength of the cadre".
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 clause
(c) in said cases was not to exceed 5 per cent of the total strength of the cadre at any time.
5. While the aforesaid process of filling up the vacancies was being undertaken, the State Government as indicated hereinabove, amended some of the provisions of the 1960 Rules by the Assam Civil Service (Class-I) (Amendment) Rules, 1986, hereinafter referred to as `the 1986 Amendment Rules', which were directed to come into force at once and were, therefore, given prospective operation. The amendment with which we are directly concerned in this case is Rule 2 of the Amendment Rules, which reads as follows :-
"2. In the Principal Rules, in Rule 4 –
(a) for clause (b) of sub-rule (1), the following shall be substituted, namely:-
"(b) by promotion from amongst the ACS (Class-II) officers who have completed 5 years of continuous service in ACS (Class-II) on the first day of January of the year in which recruitment is made"
(b) for the proviso to sub-rule (1), the following shall be subst
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