High Court · 2009

HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY Ranjan Gogoi, J Heard Sri C Baruah, learned counsel for the appellant [Responden t No.4 in WP(C) No. 3152/2008] and Sri HK Das, learned counsel for the responden ts/ writ petitioners. Also heard Sri PS Deka, learned Govt. Advocate, Assam. Both the Writ Appeals are directed against the order dated 11.6. 2. 2009 by which WP(C) Nos. 2586/2008 and 3152/2008 have been disposed of. In so fa r as WP(C) No. 2586/2008 is concerned, the learned Single Judge has directed tha t the 10% quota of promotion from Grade-IV to the post of Junior Administrative Assistant should be in respect of vacancies occurring every year and not against the cadre strength of such promotees. In WP(C) No. 3152/2008, the learned Singl e Judge has set aside the promotion of the respondent Nos. 4,5 and 6 in the writ petition on the ground that the said respondents had acquired the minimum educa tional qualification (Higher Secondary) in May, 2008, whereas under the Rules i n order to be eligible for promotion they ought to have acquired such qualificat ion on the first day of January, 2008. The respondent No.4 whose promotion has b een set aside, as already noted, is the appellant in both the appeals. Promotion to the post of Junior Administrative Assistant (earlie 3. r L.D.A.) from Grade IV posts, in the present case, is governed by the provision s of the Assam Secretariat (Subordinate Service) Rules, 1963. Rule 8 of the said Rules contemplate appointment in the post of Junior Administrative Assistant by direct recruitment; by selection from Typists of the Secretariat and by selec tion from Grade IV staff who have rendered at least 7 years of continuous servic e and have passed the High Secondary Schools Leaving Certificate Examination on the first day of the year in which the selection is made. The note appended to R ule 8(3) of the Rules makes it clear that the proportion of vacancies to be fill ed up in any year according to sub-Rule 8(1), 8(2) and 8(3) shall be 60, 30 and 10 respectively, in other words, 60% by direct recruitment, 30% by promotion fro m Typists and 10% by promotion from Grade IV staff. According to the respondents / writ petitioners, though about 19 posts were available for being filled up by promotion from Grade IV staff in the selection held in the year 2008 only about 13 posts were filled up which is contrary to the Rules. The State tried to defen d the above position by contending that the percentage prescribed by the Rules i s required to be worked out against the total cadre strength and not the vacanci es in a calendar year. Having regard to the clear language contained in the note appended to Rule 8(3), it will be difficult for the Court to uphold the stand t aken by the State. As already noticed, the aforesaid note makes it very clear th at the vacancies to be filled up in any year shall be in the ratio of 60 : 30 : 10 respectively. If the above is the contemplation of the Rules, no error can b e found in the conclusion reached by the learned Single Judge that the 10% quota has to be worked out against the vacancies occurring in every year. Though the learned Single Judge has set aside the promotions of 4. the respondent Nos. 4,5 and 6 to the post of Junior Administrative Assistant in WP(C) No. 3152/2008, the present appeals having been filed only by the responde nt No.4 in the writ petition, the Court would be concerned with the case of the appellant only. Under Rule 8(3) of the Rules, as amended, a Grade IV employee to be eligible for promotion to the post of Junior Administrative Assistant, inter alia, must have passed the Higher Secondary School Leaving Certificate Examinat ion on the first day of the year in which the selection for promotion is made. T he first day of the year in the present case will, therefore, be 1.1.2008. It is not in dispute that that the appellant/ respondent No.4 had passed her Higher Secondary School Leaving Certificate Examination in May, 2008, the result of the examination of the year 2008 having been declared around that time. On the sai d undisputed facts there will be no doubt that the appellant/ respondent No.4 di d not have the minimum condition of eligibility prescribed by Rule 8(3) on the f irst day of the year in which the selection was made. If that be so, no fault ag ain can be found with the conclusion recorded by the learned Single Judge leadin g to the interference made with the promotion of the appellant/ respondent No.4. Our agreement with the view expressed by the learned Single Judg 5. e in the impugned judgment dated 11.6.2009 will now give rise to, what we are to ld, two vacancies in the post of Junior Administrative Assistant. The said vacan cies did not materialize earlier because of the interim order passed by this Cou rt on 19.8.2009 staying the operation of the judgment of the learned Single Judg e dated 11.6.2009. The Writ Appeals having been finally determined by us and the views of the learned Single Judge being upheld, the said vacancies will, theref ore, occur immediately. As at least two vacancies in the post of Junior Administrative A 6. ssistant following the 10% quota available for promotion from eligible Grade IV employees will now be available, we direct that a fresh promotional process for filling up the said vacancies will be taken up forthwith and completed by the co mpetent authority of the State Government within a period of four weeks from the date of receipt of this order. In the said promotional process all eligible can didates within the zone of consideration, in order of seniority, will be conside red and, thereafter, fresh promotion orders will be passed. As the appellant is presently holding the post of Junior Administrative Assistant and has been holdi ng the said post since the date of her promotion i.e. 7.2.2009, we direct that u ntil the two vacant post of Junior Administrative Assistant are filled up in ter ms of the present directions, the appellant be allowed to continue in the post o f Junior Administrative Assistant.

7. We are told at the Bar that recently the promotional process for filling up the vacant posts of Senior Administrative Assistant from the cadre o f Junior Administrative Assistant has been initiated and consequential vacancies in the cadre of Junior Administrative Assistant are likely to arise. We make it clear that the two posts identified in the present order will be filled up sepa rately and the promotional process for the same will be completed within the tim e schedule mentioned in the present order without combining the said posts with the anticipated vacancies of Junior Administrative Assistant that are likely to occur.

8. ove. No costs. Both the Writ Appeals shall stand disposed of in terms of the ab