IMPORTANT POINT
The Court established that the principles of legislation by incorporation do not apply to executive orders like Office Memorandums, affecting the applicability of amended service rules.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. S Sahu, the learned counsel appearing on behalf of the review petitioner in Review Pet No. 128/2023 and Mr. MP Sarma, the learned counsel appearing on behalf of the review petitioner in Review Pet. No. 28/2023. I have also heard Mr. B Gogoi, the learned standing counsel, Finance and Taxation Department, Government of Assam.

2. Both these review petitions have been filed seeking review of the judgment and order dated 04.01.2023 passed in WP (C) No. 2121/2018. For the sake of convenience, this Court would refer to the parties herein in the same status as they stood in the writ proceedings.

3. The review petitioner in Review Pet. No. 128/2023 is the petitioner in WP (C) 2121/2018 and the review petitioner in the Review Pet. No. 28/2023 is the respondent No. 5 in the said writ petition. The ground on which, the review petition has been filed is that an error apparent on the face of the record has been committed by this Court by partly dismissing the writ petition and partly by passing appropriate directions directing reversion of the respondent No. 5 to his original post. The error which has been submitted to have been committed by this Court, which is apparent on the face of the record is that this Court had applied the amended Rule 6(6) of the Assam Ministerial District Establishment Service Rules 1967 (for short, the Rules of 1967) which as per both the counsels for the review petitioners could not have been applied so, in view of the Office Memorandum dated 06.04.1999, whereby only the un-amended Assam Ministerial District Establishment Service Rules 1967 was incorporated to the service conditions of the review petitioners.

4. The counsels appearing on behalf of both the review petitioners duly submitted that taking into account that only the un-amended Rule 6(6) of the Rules of 1967 was incorporated, the principles of Legislation by Incorporation shall apply and irrespective of an amendment being made to Rule 6(6) in the Rules of 1967, unless and until the same is again re-incorporated vide any office memorandum or circular, the service conditions has to be adjudged on the basis of the Office Memorandum dated 06.04.1999. In that regard, the learned counsels appearing on behalf of the review petitioners have relied upon the judgments of the Supreme Court in the case of Mohan Chowdhury Vs. The Chief Commissioner, Union Territory of Tripura, AIR 1964 SC 173, as well as the judgment in the case of the State of M.P. Vs. M.V. Narasimhan, AIR 1975 SC 1835. In that regard the learned counsels referred to paragraph 11 of the judgment rendered in Mohan Chowdhury (supra) as well as paragraph 16 in the case of MV Narasimhan (supra). The learned counsels appearing on behalf of the review petitioners have further submitted that the basis on which both the judgments have been delivered is in terms with Section 8 of the General Clauses Act, 1897 (for short the Act of 1897). In addition to that, the learned counsels appearing on behalf of the review petitioners submitted that a perusal of the stands which have been taken by the respondent authorities in the affidavits also clearly show that they have not adopted the Rules of 1967 and have only stated that the principle of the Rules of 1967 is to be followed. It is therefore the submission of the learned counsels appearing on behalf of the review petitioners that if only the principle is to be followed and the Rules of 1967 have not been adopted, an error apparent on the face of the record, had crept in the judgment sought to be reviewed on the basis that this Court applied the amended Rule 6(6) of the Rules of 1967.

5. Per contra, Mr. B Gogoi, the learned counsel appearing on behalf of the Finance and Taxation Department of the Government of Assam submitted that a perusal of the Office Memorandum dated 06.04.1999 would show that in view of various requests being made seeking clarification to the Commissioner of Taxes, the Office Memorandum dated 06.04.199