The main legal point established in the judgment is that any direction for consideration of promotion must be in line with the present Rules, and the court cannot grant relief based on earlier qualification criteria that have been amended.

The grievance raised in this petition filed under Article 226 of the Constitution of India is with regard to the promotion which the petitioners claim from Grade IV to Grade III under the Assam Ministerial District Establishment Service Rules, 1967 (hereinafter the Rules, 1967).

2. The background facts leading to the aforesaid claim are narrated hereinbelow in brief.

3. While the petitioner no. 1 was appointed as Process Server on 12.10.1993, the petitioner no. 2 was appointed as a Peon on 31.08.1988 in the establishment of the Office of the deputy Commissioner, Hailakandi. It is not in dispute that both the aforesaid posts are in the Grade IV. The post in Grade III has a promotional quota of 10% which are to be filled up from eligible candidates in the feeder cadre of Grade IV and the educational qualification at that time was prescribed to be Higher Secondary. It is the case of the petitioners that both of them were eligible for such consideration and in spite of meeting the eligibility criteria, both by means of educational qualification and other factors, the petitioners were not given the benefit of promotion. The Rules however had undergone an amendment in the year 2015 wherein the minimum qualification was amended from Higher Secondary to Graduation. The petitioners contends that the Rules being prospective in nature, the cases of the petitioners can still be considered as they were eligible during the period till 2015 and therefore, a direction be issued for their promotion.

4. The defence of the State is that any consideration has to be made as per the existing Rules which admittedly require a candidate to be a Graduate and the petitioners do not possess such qualification.

5. I have heard Shri B. Chakravarty, learned counsel for the petitioners. I have also heard Shri R. Dhar, learned State Counsel for the official respondent. Shri IH Barbhuiya, learned counsel appears for the respondent no. 4.

6. Shri Chakravarty, learned counsel for the petitioners, at the outset, has submitted that though an incumbent has been made a party respondent no. 4, the present relief claim would not affect his service as the prayer is only for a consideration of the cases of the petitioners for promotion to Grade III. By drawing the attention of this Court to the Rules of 1967, the learned counsel for the petitioners has submitted that for filling up the post of Grade III, there is also an avenue for promotion of 10% of the vacancies. By drawing the attention of this Court to the averments made in the petition including a response received by an application under the RTI Act dated 08.10.2018, the learned counsel for the petitioners has submitted that sufficient vacancies were there till the amendment of the Rules wherein the petitioners could have been considered and promoted. He submits that the amendment not having any clause that the same would have a retrospective affect, such additional qualification can be held to be necessary only post 2015 and therefore, the petitioners would possess a vested right for consideration of their cases.

7. In support of his submissions, the learned counsel for the petitioners has placed reliance upon the following case laws-

i.

AIR 1965 SC 1970

[Amireddi Raja Gopala Rao Vs. Amireddi Sitharamamma]

ii. 1976 (3) SCC 37 [Vijayalakshmi Rice Mills, New Contractors Company Vs. State of A.P.]

8. In the case of Amireddi Raja Gopala Rao (supra), the Hon’ble Supreme Court has laid down that if a statute is intended to be retrospective it should be expressly made, otherwise the effect would only be prospective in nature. In the case of Vijaylakshmi Rice Mills (supra), the aforesaid proposition has been reiterated.

9. Additionally, the learned counsel for the petitioners has also relied upon an order dated 15.06.2023 of this Court passed in WP(C)/3797/2020 [Dinesh Kumar Singh Vs. the State of Assam and Ors.] The learned counsel for the petitioners has also submitted that the petitioners have not been given the benefit of Ass