The power to make rules under Article 309 of the Constitution of India, 1950, cannot be used to justify arbitrary, illegal, or unconstitutional acts of the executive.

Both these Civil Rules raise the common question of law and facts and as such they have been heard together and this common judgment shall dispose of both the Civil Rules.

2. Civil Rule No.2535 of 1992 has been filed by an Association represented by its President. In the Civil Rule as respondent No.6, Assam Animal Husbandry and Veterinary Service Rules Implementation Action Committee, Khanapara, represented by Dr. Gautam Kumar Bordoloi, General Secretary of All Assam Animal Husbandry and Veterinary Degree-Holder Service Association entered as Intervener. In the year 1989 the Government of Assam in exercise of power conferred by proviso (2), Article 309 of the Constitution of India,1950 was pleased to make the rules regulating the recruitment and conditions of service and the said rules came into force from 23.1.89. The said rules were named as the Assam Animal Husbandry and Dairing Service Rules, 1989 (hereinafter called the Rules, 1989). Rule 11 (5) which is relevant for the purpose of these Civil Rules is quoted below:

"(5) Notwithstanding anything contained in these rules 25% of the vacancies available in a year shall be filled up by direct recruitment in all the promoted cadre posts."

Through this rule came into force nothing was done in pursuance of this rule. Accordingly the Committee of respondent No.6 was formed and a Civil Rule being Civil Rule No. 13 71 of 1991 was filed before this Court with a prayer to issue a writ of Mandamus directing the State of Assam and others to implement Rule 11 (5) of the Rules of 1988. This Court was pleased to dispose of the writ application with a direction, inter alia, as follows :

"In the result we dispose of the writ petition with a direction to the respondents to implement the Rule 11(5) read with Rule 21(3) of the above rules within 3 months from today. If any difficulty arises in implementing the rules, the State Government may approach this Court for modification of this order." That was an order by the Division Bench of this Court. Rule 21(3) of the Rules reads as follows :

"A member appointed on promotion in a cadre against a vacancy occuring in a year shall be senior to a member appointed by direct recruitment of that year." Thereafter a review application was filed against this order being Review Application No.37 of 1991 and on 8.6.92 that review application was rejected with the following order :

"After hearing the learned counsel for the parties, we are of the opinion that the review petition has no merit inasmuch as by judgment and order dated 24.5.91 we only directed the Government to implement the said Rule 11(5). So long the said rule exists which was framed under Article 309 of the Constitution, the Government is duty bound to implement the above rule. It is not necessary for us to consider whether any person would be effected due to implementation of the said rule and whether such person has to be made a party. We may note here that the validity of the rule has not been questioned before us."

In spite of this order nothing was done and as such a contempt petition being Civil Original Contempt Petition No.137 of 1991 was filed and in that contempt petition (his Court noted the grievances of the petitioner as follows : "The petitioner's grievance is that none of the vacancies arose at and after 23.1.89 have been filled up by direct recruitment and the petitioners are deprived of benefits since they could have applied when direct recruitment is made and they have been denied that opportunity." It was further found by this Court as follows :

"Having heard the learned counsel of both sides, we are satisfied that a prima facie case for contempt has been made out. Therefore, the contempt proceeding is hereby initiated. The 1st respondent will file a counter affidavit indicating number of vacancies which arose in the cadres referred to in Rule 11 of the rules and the number of such vacancies filled up by direct recruitment with effect from the date from which the rule came into for

Click Here to Read the rest of this document