Prabin Kumar Saikia & Ors. v. State of Assam) and WP & Ors.

I have heard Mr. T.C. Khatri, learned senior counsel assisted by Mr. B. Pushilal, learned counsel for the petitioner as well as Ms. B. Dutta, learned St ate Counsel. I have also heard Mr. H.K. Mahanta, learned counsel appearing for r espondents No. 3 and 4 and so also Mr. U.K. Nair, learned counsel representing t he respondent No.6. Mr. C. Baruah, learned counsel entered appearance on behalf of the APSC and he has also been heard. I have also heard Mr. P. Dutta, learned representing the respondent No.5.

At the outset, learned counsel representing the respondents have contend ed that the instant writ petition is not maintainable, inasmuch as, the issue ra ised in the writ petition has already been adjudicated upon in earlier round of litigation involving the same parties. In this connection, they have referred to the judgement and order dated 28.2.2006 passed in WP(C) No. 6625/2002 ( Prabin Kumar Saikia and others Vs. State of Assam and others) and WP(C) No. 1679/2003 ( Prabin Kumar Saikia and others Vs. State of Assam and others). According to the learned counsel for the respondents, the instant writ petition is clearly barred by the principles of resjudicata / constructive resjudicata. They submit that i n the garb of the instant writ petition, the petitioner cannot be allowed to go for repeat performance in respect of the same grievance that was raised in the e arlier round of litigation, which has finally been adjudicated upon by the afore said judgement and order dated 28.2.2006. I have considered the submissions made by the learned counsel for the pa 5. rties and have also perused the entire materials on record. The prayer made in t his writ petition is to set aside and quash the deemed appointment of the privat e respondents to ACS Class-I from their earlier ACS Class-II service as per the provisions of Rule 4(3) of the Assam Civil Services (Class-I) Rules, 1960 (As am ended in 1989). For a ready reference, the amended provision is quoted below :- Notwithstanding anything contained in sub-rule (1) and (2) all e (cid:28)Sub-Rule (3) xisting members of ACS (Class-II) as on such date as the Governor may specify in a notification in this behalf shall be deemed to have been appointed to the Ju nior Grade of ACS (Class-I) with effect from such date as the Governor may speci fy in such notification. (cid:29)

The aforesaid amendment was made effective vide notification dated 16.12 .1989. By the same very notification, Rule 19 was also amended by adding Sub-Rul e 4 & 5, which are also quoted below :- (cid:28)Sub-Rule (4) 4 shall be junior to the members of service already appointed under sub-rule (1) The members of the service appointed under sub-rule (3) of Rule and (2) of rule 4. Sub-Rule (5) The seniority inter se of the members of the service recruited u nder sub-rule (3) of rule 4 shall be in the order of their gradation in the ACS (Class-II). (cid:29)

In the earlier round of litigation, the petitioner had challenged the sa id notification dated 16.12.1989 by which the ACS Class-II Officers were deemed to have been appointed to ACS Class-I service (Junior Grade). Be it stated here that by Annexure-A notification, such deemed appointment to ACS Class-I was made effective from 30.12.1989.

In the aforesaid writ petitions, challenge was also made to determinatio n of seniority on the basis of such deemed appointment. By virtue of such deemed appointment to ACS Class-I w.e.f. 30.12.1989, the private respondents were show n senior to the petitioner in the gradation list that was drawn pursuant to furt her promotion of the private respondents by virtue of their deemed appointment t o ACS Class-I service. Answering both the challenge, this Court by its judgement and order date 9. d 28.2.2006 held that there was no infirmity in making the amendment to the rul es and consequent fixation of seniority granting seniority to the private respon dents above the petitioner.

According to Mr. Khatri, learned counsel for the petitioner, such deemed appointment to ACS Class-I from ACS Class-II cannot take away the accrued right of the petitioner, inasmuch as, the petitioner had responded to the advertiseme nt issued on 26.3.1989 and the amendment was brought much after i.e. 16.12.1989. According to him, irrespective of his appointment to the service in 1992, the s eniority will have to be determined in reference to the aforesaid advertisement.

Apart from the fact that the aforesaid plea of the petitioner had alread y been gone into in the earlier round of litigation, the said plea is also not s ustainable in law. Merely because the petitioner had responded to the advertisem ent dated 26.3.1989, no right had accrued to him. His name was empanelled pursua nt to the selection conducted thereafter and eventually he was appointed in 1992 . The fact of the matter is that by the time the petitioner was appointed in 199 2, the private respondents came to be appointed to ACS Class-I service by virtue of the aforesaid amendment brought by notification dated 16.12.1989 and w.e.f.

30.12.1989.

After the aforesaid deemed appointment of the private respondents to ACS Class-I service, they have further been promoted to higher grade and in the ear Consequent to the aforesaid amendments, a new gradation list of the amal lier round of litigation, fixation of their seniority above the petitioner was a lso challenged. Both the contentions i.e. challenge to the notification dated 16 .12.1989 and fixation of seniority of the private respondents above the petition er have been rejected by the aforesaid judgement and order dated 28.2.2006, to w hich the petitioner was very much party. In this connection, paragraphs 8, 10, 1 1, 12, 13 and 14 of the said judgement are quoted below :- (cid:28)8. gamated ACS Officers, after the aforesaid amendment, was prepared wherein the na mes of the petitioners were placed below the private respondents as per the peti tioners entered into the service after the private respondents. Challenging the aforesaid impugned notification dated 16.12.1989, the learned Counsel for the pe titioners submit that the said amendment is illegal and unconstitutional and it cannot take away the right of seniority of the petitioners to have their place a bove the respondents in the gradation list more particularly in view of the fact that most of the respondents during the time have not acquired the necessary el igibility criteria by completing five years for getting promotion to the higher cadre of ACS (Class-I). Consequently it is contended that the impugned promotion order of the private respondents impugned in WP(C) 1679/03 is illegal, unjust a nd improper.

10. As alluded herein above, the entire dispute centers around the fact whether the impugned notification dated 16.12.1989 is a valid exercise in law and legall y sustainable. It is an admitted fact that the impugned amendments of the releva nt 1960 Rules w.e.f. 16.12.989 were made even before appointments of the petitio ners as ACS (Class-I) Officers in the year 1992. This goes to show that even at the time of entry of the petitioners into the cadre of ACS (Class-I), the amende d Rule was very much in existence. After entry into the service when the draft g radation list was published placing the names of the petitioners below the priva te respondents in terms of the amended Rule 19, which was very much existing at that time, the petitioners approached this Court by filing these writ petitions.

11. The impugned amendment Rule being a statutory one, in order to assail th e legality and validity of the same, the petitioners’ are to satisfy the require ment that the said impugned notification effects either the fundamental right of the petitioners or any other legal rights or it is ulterior to certain stature so as to declare it as unconstitutional. The pleadings of the petitioners have n either specified any such ground on which the impugned amendment Rule is to be s truck down as ultra vires nor any justifiable arguments is forthcoming from the petitioners’ side.

12. Mr. Sharma has submitted that as because by virtue of the impugned notif ication, the seniority of the petitioners have been adversely affected, so the s ame is bad in law and is liable to be struck down. I am afraid, under the existi ng law as it stands till now, such a statutory rule cannot be struck off on such ground. No malafide has also been alleged by the petitioner. In fact, the petit ioners have not laid any foundation or basis for challenging the impugned notifi cation. The impugned notifications, on the face of it, cannot be said to be ultr a vires or violative of any of the provisions of any law apart from the same con tinues to hold the field since even prior to the entry of the petitioners into t he service.

The impugned notification also takes care of the situation regarding the inter se seniority of the members of the amalgamated cadres by amending Rule 19 as narrated hereinabove. If there is any wrong application of the rule regardin g seniority of the members as laid down in the amended Rule 19 any affected indi vidual Officer will certainly be entitled to question the same. But as a whole, the illegality and unconstitutionality of said amended Rule could not be establi shed by the petitioners or any Court. Consequently the impugned order of promoti on made subsequently applying the amended Rule has also no legs to stand.

In view of the aforesaid discussions, I do not find any merit in these writ petitions and hence the same are dismissed. Interim order, if any stands vacated . (cid:29)

13. On perusal of the aforesaid judgement and order, there is absolutely no manner of doubt that the issue now raised in this writ petition is only a repeti tion of the same very plea raised in the earlier round of litigation. Although, in the amendment to Rule 4(3) it was indicated that the ACS Class-II Officers sh ould be deemed to have been appointed to ACS Class-I (Junior Grade) with effect from the such date as the Governor might specified in such notification and cons equent thereupon the Annexure-A notification was issued deeming the ACS Class-II Officers should have been appointed as ACS Class-I Officers w.e.f. 30.12.1989. The said notifications were also not challenged in the earlier round of litigati on. In the present writ petition also, there is no formal challenge to the said notification. Irrespective of any challenge or otherwise to the said notificatio n dated 30.12.1989, when the amendment itself had been notified vide notificatio n dated 16.12.1989 and has been upheld by this Court by which the ACS Class-II o fficers have been deemed to have been appointed to ACS Class-I, the said issue c annot be allowed to be reopened by another round of litigation.

Mr. Khatri, learned counsel for the petitioner submits that this writ pe 14. tition is maintainable in view of the liberty granted in paragraph 13 of the jud gement quoted above. On perusal of the observations made in paragraph 13 of the judgement coupled with the correction made in the judgement vide order dated 15. 6.2006, what is seen is that such liberty is only in respect of inter se seniori ty dispute of the members of the amalgamated cadre and not in respect of the kin d of situation in which the petitioner has emphasized. Any other meaning to the said observation would be ante-thesis to the findings recorded in the said judge ment, by which the amendment referred to above has been upheld. For a ready refe rence, the correction made to the earlier judgement vide order dated 15.6.2006 i s also reproduced below :- (cid:28)15.6.2006 It is pointed out by Mr. Sarma, learned counsel for the private respondents that there are some typographical error in the judgement and order dated 28.2.2006 p assed in WP(C) No.

6625/02 at Paragraph 13 of the judgment. On perusal of the same, I find that some inadvertent error crept into in the lin e Nos. 8 and 9 of Para 13 of the said judgment. Accordingly the said line Nos. 8 and 9 in Para 13 of the judgment and order dated 28.2.2006 be read as (cid:28)be estab lished by the petitioners on any count. Consequently the challenge of the impugn ed order of promotion made subsequently applying the amended Rule has also no le gs to stand (cid:29) instead of (cid:28)be established by the petitioners or any Court. Consequ ently the impugned order of promotion made subsequently applying the amended Rul e has also no legs to stand (cid:29) & This aforesaid the lines shall form a part of the original judgement and order d ated 28.2.06. (cid:29)

on and accordingly it is dismissed leaving the parties to bear their own costs. For all the aforesaid reason, I do not find any merit in the writ petiti