The importance of the position in the Select List for promotion and the prospective application of statutes.

JUDGMENT

Sanjay Kumar Medhi, J. - Considering the subject matter in dispute and also in view of the fact that pleadings have been exchanged, the present writ petition is taken up for disposal at the admission stage itself.

2. I have heard Ms. SB Choudhury, learned counsel for the petitioner. I have also heard Ms. MD Bora, learned Standing Counsel, Transport Department, Assam as well as Ms. B Bora, learned counsel for the Accountant General, respondent no.7. Ms. M Devi, learned counsel appears on behalf of the respondent no. 8.

3. The subject matter of challenge in this writ petition is an order dated 17.02.2020 by which, the private respondent no. 8 has been promoted to the post of Head Assistant. It is the case of the petitioner that the petitioner was appointed as a Lower Division Assistant (LDA) in the Inland Water Transport Department vide an order dated 23.12.1986 and subsequently promoted to the rank of UDA (Senior Assistant) on 04.04.2008 and his name was against Sl. No.4. By the said order, the respondent no. 8 was also promoted to the rank of UDA and was placed in Sl. No.2. It is the case of the petitioner that while he had joined as Senior Assistant on 16.04.2008, the respondent no. 8 had joined the said post of Senior Assistant on 30.04.2008. The post of UDA, being the feeder cadre for the post of Head Assistant, an exercise was undertaken in which the respondent no. 8 was selected and subsequently promoted as Head Assistant vide an order dated 17.02.2020. Being aggrieved by the order dated 17.02.2020, the petitioner had initially submitted a representation and thereafter also filed WP(C) No.1995/2020 in which an order dated 27.03.2020 was passed issuing notice and observing that the order of promotion would be subject to the outcome of the writ petition. However, since the private respondent no. 8 had already joined in the higher post of Head Assistant, the earlier writ petition was withdrawn and the present writ petition filed.

4. On receipt of notice, both the Department as well as the private respondent no. 8 have filed their respective counter affidavits and the petitioner has also filed rejoinder-affidavits.

5. Ms. Choudhury, learned counsel for the petitioner submits that the aforesaid promotion is made in gross violation of Rule 11 (iii) of the Assam Ministerial District Establishment Service Rules, 1967 (for short hereinafter referred to as the 1967 Rules) whereby the petitioner has been ignored in spite of being senior to the respondent no. 8. The second ground of challenge is that vide an amendment of the aforesaid Rules made in the year 2015, the minimum qualification for the post of LDA has been enhanced from matriculation to Graduation and in the instant case, while the petitioner is a Graduate, the respondent no. 8 is only a matriculate.

6. Ms. MD Bora, learned Standing Counsel, Transport Department, on the other hand submits that neither of the grounds are tenable. While the interpretation of the petitioner as regards Rule 11 (ii) of the 1967 Rules is incorrect, the second ground of the amendment shall not be applicable in the instant case. She further clarifies that the relevant Rule is Rule 11 (ii) and not Rule 11 (iii) as contended in the writ petition.

7. Ms. M Devi, learned counsel for the respondent no. 8 while endorsing the submissions of Ms. Bora, learned Standing Counsel, additionally submits that there is no question on his eligibility and the promotion to the rank of Head Assistant has been done strictly in accordance with the Rules holding the field. As regards the contention of the petitioner in connection with the amendment of 2015, Ms. M Devi, learned counsel submits that such amendment can only be prospective in nature and cannot have any bearing with the appointment of the respondent no. 8 which was in the year 1986.

8. The rival submissions of the learned counsel for the parties have been duly considered and the materials available before this Court have been carefully examined.

9. To apprec