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2019 Supreme(Gau) 933
IN THE HIGH COURT OF GAUHATI
A.K. Goswami, Manish Choudhury, JJ.
Mihir Chakroborty And Others - Appellant
Vs.
State Of Assam And Others - Respondent
Writ Petition (Civil) No. 997 of 2016, 6520 of 2016, 7973 of 2015, 7969 of 2015, 116 of 2016, 53 of 2016, 6175 of 2016, 67 of 2016, 7988 of 2015, 7981 of 2015, 861 of 2016
Decided On : 11-09-2019
A.K. Dutta, S. Saikia, Mdi H. Khan, P.J. Dutta, Adv., B.P. Borah, Adv., P.K. Goswami, Adv., B.K. Mishra, Adv., F.U. Barbhuiya, Adv.
Headnote:
Constitution of India – Articles 14 16 309 – Assam Secondary Education (Provincialisation) Service Rules,2003 – Section 3 – Rule 4 8 – Assam Directorate Establishment (Ministerial) Service Rules, 1973 – Section 1 2 10 – Rule 10 – Assam Ministerial District Establishment Service Rules,1967 – Section 2 – Rule 6 – Assam Service (Revision of Pay) Rules,2017 – Modified Career Progression Scheme – Assam Secondary Education (Provincialisation) Service Rules,1982 – Assam Secondary Education (Provincialisation) Act,1977 – Assam Secondary Education (Provincialised) Service (Amendment) Rules,2012 – Constitutionality of Legislation – Promotion in Services – In this batch of writ petitions, barring WP(C) 997/2016, the petitioners have, essentially, prayed for declaring and adjudging Rule 4 of the Assam Secondary Education (Provincialisation) Service Rules,2003, as unconstitutional and void – In WP(C) 997/2016, prayer is made for incorporating provision for promotion of Grade-IV employees to the next higher post of Junior Assistant in Grade-III – Counsel for Petitioners has submitted that in absence of any scope for promotion for the Grade-IV employees under the 2003 Rules, the same is violative of Articles 14 and 16 of the Constitution of India – So far as the members of the petitioner Association, who were appointed prior to 2003 and who had promotional avenue, had been deprived of promotion, thereby taking away vested right for being considered for promotion – Held, In service jurisprudence, promotion usually means advancement in rank, grade or both – Promotion generally means appointment to a different post carrying a higher scale or pay in the service – From a perusal of the materials on record it is apparent that there is no provision for promotion of Class IV employees working in provincialised schools although instances have been brought on record to indicate that some up-gradation of existing Class IV employee to the post of Junior Assistant had been made till permanent arrangements were made – There does not appear to be any basis for the same – In Rule 4(a)(i) of the 2003 Rules there is a reference to Select List to be prepared by the School Selection Committee – The aforesaid provision indicates that such Selection Committee is to be constituted school-wise for the purpose of appointment to the school – It is not disputed by the petitioners that the class and cadre under the 2003 Rules are school based – The number of post in each cadre, including the cadre of Junior Assistant in each school is one or two – The qualification prescribed for Class IV and Junior Assistant under the 2003 Rules is different – It is also not clear regarding the qualification of members of Class IV who were appointed prior to coming into force of the 2003 Rules – A perusal of the aforesaid judgements goes to show that provision for promotion also increases efficiency of public service while stagnation reduces efficiency and makes the service ineffective – Therefore, an employee should be given an opportunity of advancement and the State must provide realistic opportunities to employees to move up by way of promotion – Counsel for Petitioners is right in submitting that though the Government was alive to the need to provide promotional avenues to Class IV employees, the same, however, did not materialise in the 2003 Rules – In the present facts and circumstances, Court is of the considered opinion that it will be in the interest of justice to mould the relief by directing the respondents to consider framing suitable provision for promotion of Class IV employees to the post of Junior Assistant by prescribing such eligibility criteria, as it may deem appropriate, in addition to filling up the posts of Junior Assistant by way of direct recruitment, within a period of six months – The writ petitions stand disposed of with the above directions and observations – Petitions Disposed Of
JUDGMENT :
A. K. Goswami, J.
1. We have heard Mr. P. K. Goswami, learned Senior counsel appearing for the petitioners in WP(C) 116/2016, WP(C) 7969/2015, WP(C) 7973/2015, WP(C) 7981/2015, WP(C) 7988/2015, WP(C) 53/2016 and WP(C) 67/2016; Mr. A. K. Dutta in WP(C) 997/2016; Mr. S. Islam in WP(C) 6175/2016 and Mr. M. U. Mondal in WP(C) 6520/2016. Also heard Mr. D. Mazumdar, learned Additional Advocate General, Assam, assisted by Mr. B. Talukdar, learned Standing counsel, Education (Secondary) Department as well as Mr. R. Borpujari, learned Standing counsel, Finance Department, appearing for the State respondents. None has appeared for the petitioner in WP(C) 861/2016.
2. In this batch of writ petitions, barring WP(C) 997/2016, the petitioners have, essentially, prayed for declaring and adjudging Rule 4 of the Assam Secondary Education (Provincialisation) Service Rules,2003 (for short, “2003 Rules”), as unconstitutional and void. In WP(C) 997/2016, prayer is made for incorporating provision for promotion of Grade-IV employees to the next higher post of Junior Assistant in Grade-III. Prayer is also made to amend an Office Memorandum dated 29.12.2015, issued by the Secretary to the Government of Assam, Secondary Education, on the subject of guidelines for recruitment of Junior Assistant in provincialised Higher Secondary and High School/High Madrassa. In WP(C) 7973/2016, WP(C) 7981/2015, WP(C) 7988/2016, WP(C) 53/2016, WP(C) 67/2016 and WP(C) 861/2016, advertisements to fill up various posts of Junior Assistant/Lower Division Assistant are also challenged. In WP(C) 116/2016, WP(C) 6175/2016 and WP(C) 6520/2016, the Office Memorandum dated 29.12.2015 is assailed.
3. Mr. Goswami has submitted that he will address his arguments on the basis of the pleadings contained in WP(C) 116/2016. WP(C) 116/2016 is filed by a registered Association represented by its Secretary, who himself is the petitioner No. 2. We have proceeded accordingly and have considered the pleadings in WP(C) 116/2016 for the purpose of disposal of the batch of writ petitions.
4. Although, apart from the petitioner No. 2, as indicated above, there are no other petitioners who are Grade-IV employees, however, it is contended that the petitioners were appointed at various schools in the cadre of Grade-IV during the years 1982 to June, 2013. What is sought to be meant, it appears, that the members of the petitioner No. 1 Association had been appointed to various schools in the cadre of Grade-IV during the period from 1982 to June, 2013. The petitioners in rest of the writ petitions are all Grade-IV employees.
5. It is stated that some of the members of the petitioner Association were appointed under the Assam Directorate Establishment (Ministerial) Service Rules, 1973 (for short, “1973 Rules”) and the others under the 2003 Rules. All the members of the petitioner Association are working as Grade-IV employees. The members of the petitioner Association, who were appointed under the 1973 Rules, have legitimate expectation that when vacancies arise they would be promoted to Grade-III in terms of Rule 10(3) of the 1973 Rules and vacancies indeed had arisen post-2003 when the 2003 Rules had come into force. Rule 4 of the 2003 Rules, contemplates mode of recruitment to Grade-III by way of direct recruitment only from a select list prepared by the School Selection Committee under the provisions of Rule 8(c) on the basis of test and interview and, therefore, there is no promotional scope for the Grade-IV employees under the 2003 Rules. Despite the provision contained in Rule 4, the Government was upgrading posts of Grade-IV to Grade-III as appointments were made prior to 2003 and that vacancies had also arisen before 2003, but because of the Office Memorandum dated 29.12.2015, it becomes evident that posts of Grade-III in the schools will be filled up only by direct recruitment by application of Rule 4 of the 2003 Rules. Mr. Goswami has submitted that in absence of any scope for promotion
