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2006 Supreme(Gau) 7
IN THE HIGH COURT OF GAUHATI
B. Sudershan Reddy, C.J. and Brojendra Prasad Katakey, J.
Jagat Ram Barthakur - Appellants
Vs.
State of Assam - Respondent
Writ Appeal No. 397 of 2004
Decided On: 03.01.2006
For Appellant/Petitioner/Plaintiff: P.D. Gogoi and K.C. Bhagwati, Advs.
For Respondents/Defendant: P.K. Mushahary and S. Ali, Advs.
The court clarified the difference in parameters of judicial review for statutory rules and Executive Orders, and declined to issue futile writs or express opinions on academic issues.
Headnote:
Executive Order - Appellant's Appointment and Promotion - Assam Geology and Mining (Recruitment and Conditions of Service) Order, 1988 - Paragraph 5(1) and 5(2)
Fact of the Case:
The appellant challenged the constitutional validity of paragraph 5(1) and 5(2) of the Assam Geology and Mining (Recruitment and Conditions of Service) Order, 1988, which regulated the recruitment and conditions of services for promotion to the post of Director of Geology and Mining.
Finding of the Court:
The court found that the Executive Order cannot be equated with the rules framed under Article 309 of the Constitution of India and that the learned Judge failed to consider the issue in its proper perspective. However, the court declined to interfere with the Executive Order at that stage, as the appellant was retiring and no positive direction could be issued to promote the appellant as Director.
Issues: Constitutional validity of paragraph 5(1) and 5(2) of the Executive Order, appellant's entitlement to relief at the stage of retirement
Ratio Decidendi: The court clarified the difference in parameters of judicial review for statutory rules and Executive Orders, and declined to issue futile writs or express opinions on academic issues.
Final Decision: The appeal was dismissed without any order as to costs, with a clarification that the court did not express any opinion on the constitutional validity of the Executive Order.
B. Sudershan Reddy, C.J.
1. The appellant is the unsuccessful writ petitioner in WP(C) No. 6223/03. This appeal is preferred against the order dated 21.9.2004 passed by the learned Single Judge of this Court in the said writ petition.
2. The appellant herein filed the writ petition challenging the paragraph 5 of the impugned Executive Order of the Governor notified on 3.12.1988. The Executive Order is known as "Assam Geology and Mining (Recruitment and Conditions of Service) Order, 1988". The said order was made regulating the recruitment and conditions of services of the persons appointed to the posts under the Geology and Mining Directorate pending finalization of Assam Geology and Mining Service Rules to be framed under the provision to Article 309 of the Constitution of India.
3. Shorn of all the details, the case of the appellant as is evident from the facts stated in the writ petition is that he was appointed in the post of Chemist in 1970 in the Department of Mines and Minerals of the Government of Assam and thereafter promoted to the post of Senior Chemist in 1975. Having been further promoted as the Deputy Chief Chemist in 1991, he is working in the same post under the Directorate.
4. The case set up by the appellant is that instead of framing the Rules, the Respondents had chosen to resort to notify the impugned Executive Order regulating the recruitment and conditions of services of the persons appointed to the posts under the Geology and Mining Directorate only with a view to deprive of his legitimate right for consideration of his case for further promotion as Director of Geology and Mining. That according to paragraph 5(1) of the impugned Executive Order, the post of Director shall be filled up by promotion from the cadre of Additional Director. According to paragraph 5(2), the post of Additional Director shall be filled up by promotion from amongst the cadres of Joint Directors and/or equivalent posts having academic qualification prescribed for the post of Director.
5. That according to him, the post of Deputy Chief Chemist from the Analytical Unit is the equivalent post of Joint Director and as the head of the Analytical Unit, drawing same pay scale as that of the Joint Directors, the Chief Geologist and the Chief Drilling Engineer. As an equivalent post, the Chief Chemist is also entitled to promotion to the post of Additional Director and thereafter to the post of Director. The case set up by him is that the respondents in an arbitrary manner fixed the qualification for the post of Director by prescribing Post Graduate Degree in Geological Sciences/Applied Geology/Geophysics or Degree in Mining Engineering from a University or Institution recognized by the Government. It is submitted that the Executive Order deliberately omitted the qualification of Post Graduate Degree in Chemistry prescribed for the post of Deputy Chief Chemist and as a result, his case could not be considered for further promotion. It is under those circumstances, the petitioner challenged the constitutional validity of paragraph 5(1) and 5(2) as well of the impugned Executive Order dated 3.12.1988.
6. The learned Single Judge summarily disposed of the writ petition under the mistaken impression as if the Executive Order were the rules framed according to which the case of the appellant herein for his further promotion could not be considered. The learned Judge summarized the grievances of the appellant herein in the following manner:
The grievance of the petitioner is that till 1988 there was no rules and as such competition was open but after notifying the 1988 rules, there was no chance of promotion of the petitioner and as such it should be struck down as it will adversely affect the promotion avenue of the petitioner.
7. The learned Judge took the view that framing of rules in realm of policy decision and until such policy decision is shown to be arbitrary or discriminatory the Court cannot interfere with such policy decision. The le
