Amendments to educational qualifications affecting promotion cannot retroactively infringe on vested rights unless explicitly stated in the legislation to have retrospective effect.

ORDER

Date : 25-03-2022

Heard Mr. R. Mazumdar, learned counsel for the petitioner. Also heard Mr. P. Nayak, learned standing counsel for the General Administration Department, representing the respondent nos. 1, 2 and 3, Mr. J.K. Parajuli, learned Government Advocate appearing for the respondent no.4, representing the Deputy Commissioner, Nagaon, and Mr. A.J. Das, learned counsel for the respondent no. 5.

2) In brief, the case of the petitioner is that as per the last Gradation List, she is presently the senior-most Supervisory Assistant in the amalgamated establishment of the Deputy Commissioner, Nagaon. In addition to her normal duty, by an order dated 07.02.2017, she has been entrusted with the duty of Revenue Sheristadar. Pursuant to an advertisement to fill up the vacant post of Revenue Sheristadar in the amalgamated establishment of the Deputy Commissioner, Nagaon, the petitioner and others had applied and that although the name of the petitioner appeared at serial no.1 in the proposal submitted to the Selection Board, by the impugned notification dated 17.02.2021, the respondent no. 5 was selected and appointed to the said post by ignoring and/or overlooking provisions of Rule 7(iii) of the Assam Ministerial District Establishment Service Rules, 1967 as amended (hereinafter referred to as the “1967 Rules”). Hence, the aggrieved petitioner has filed this writ petition under Article 226 of the Constitution of India to assail the said notification dated 17.02.2021.

3) On behalf of the respondent nos.1 and 2, the Joint Secretary to the Government of Assam, General Administration Department had filed an affidavit-in- opposition, inter alia, stating that as per the 1967 Rules, the entry level qualification for the post of Junior Assistant in the establishment of the Deputy Commissioner is “Higher Secondary School Leaving Certificate” (i.e. HSSLC for short), but the qualification of the petitioner was only High School Leaving Certificate (i.e. HSLC for short), for which the petitioner was not qualified for being promoted to the post of Revenue Sheristadar.

4) On behalf of respondent no. 4, The Assistant Commissioner has filed an affidavit-in- opposition. It has been stated that the petitioner was allowed only to look after the works of Revenue Sheristadar as such question of handing over of charge does not arise and the respondent no.5 has already joined and taken charge as Revenue Sheristadar.

5) The respondent no. 5, by filing her affidavit-in- opposition has taken a stand that she had the requisite qualifying length of service in the establishment of the Deputy Commissioner and had the experience and working knowledge in different branches thereof and therefore, eligible for being selected and appointed to the post of Revenue Sheristadar.

6) It is seen that as per the gradation list published on 30.07.2020 (Annexure-2 to the writ petition), the petitioner was an OBC and joined service as Junior Assistant in the establishment of Deputy Commissioner, Nagaon on 07.07.1981 with educational qualification of HSLC. Her service was confirmed on 01.01.1992 and was promoted to the next higher post of Senior Assistant on 13.04.1994 and she was then promoted to the next higher post of Supervisory Assistant on 27.01.2014. She is presently working in Revenue Branch and is due to superannuate on 31.08.2023. The respondent no. 5 was a General category candidate and joined servi