High Court · 2012

We have heard Mr. A.S. Bhattacharyya, Senior Advocate and Mr. P. Roy, Advocate for the petitioners in WP(C) No.1476/2012 and in WP(C) No.2749/20 12, respectively. We have heard as well Mr. U.K. Nair, learned Standing Counsel , Gauhati High Court, Guwahati for the Respondent No.1 and Mr. P.S. Deka, learne d Govt. Advocate for the Respondent Nos.2 & 3.

03. eadings, for ready reference are synopsized in the following table. The service profiles of the petitioners as disclosed in their pl Name of the petitioners ame of the Establishment promotion as UDA/Nazir Shri Dwijendra Barman. Date of appointment as LDA-cum-Typist and the n Date of Date of confirmation as LDA-cum-Typist ge, Cachar, Silchar. azir in the Family Court, Cachar, Silchar.

12.04.1994 in the Office of the District & Sessions Jud 23.04.2007 as N 01.12.2001 as L.D. Assistant. Md. Arif Uddin Laskar.

12.04.1994 as LDA-cum-Typist in the Establishment of Di strict & Sessions Judge, Cachar, Silchar and posted in the office of the Munsiff 23.04.2007 as Upper Div

01.12.2001 LDA-cum-Typist. No.1, Cachar, Silchar. ision Assistant in the Family Court, Cachar, Silchar.

04. Whereas, the petitioner in WP(C) No.1476/2012 has claimed himsel f to be a member of the Scheduled Tribe (Plains) community in the district of Ca char, Md. Arif Uddin Laskar petitioner In WP(C) No.2749/2012 has not asserted an y reserved category status. Records disclose that by order dated 05.01.2008, th e Principal Judge, Cachar, Silchar treated the recruitment of the petitioners as Nazir and Upper Division Assistant referred to hereinabove as promotions, their service in the Family Court, Cachar, Silchar being in continuation of their pre vious service. The petitioners have referred to various administrative orders o f this authority issued from time to time entrusting responsibilities to them, i n addition to their normal duties attached to their respective posts. Reference in particular has been made to the order No.29 dated 07.08.2007, where by, in view of shortage of staff, the Principal Judge Family Court, Cachar, Silc har had outlined a job chart, whereunder, amongst others, the petitioners have b een assigned additional duties as referred to therein. Administrative orders ha ve also been relied to indicate that at times during leave periods of the regula r Superintendent, Shri Dwijendra Barman, petitioner in WP(C) No.1476/2012 as the Nazir of the establishment was allowed to remain In-charge of the office. Like wise, Md. Arif Uddin Laskar, petitioner in WP(C) No.2749/2012 for brief periods of leave was allowed to remain In-Charge of the office of the Family Court, Cach ar, Silchar.

05. Whereas, the petitioner in WP(C) No.1476/2012 contended that in view of his longstanding experience in service and satisfactory discharge of the duties of the office of the Superintendent, as above, he is entitled to be prom oted thereto in preference to other eligible candidates, if any, in the establis hment of the Family Court, Cachar, Silchar, the petitioner in WP(C) No.2749/201 2 refuting this claim, has asserted that Upper Division Assistant being the only feeder post of promotion to that of Superintendent and as the post of Nazir is sub-ordinate thereto, he in view of his blemishless services is the only candida te eligible and entitled to be elevated to the higher post of Superintendent. B oth are, however, one in impugning the advertisement for direct recruitment to t he post of Superintendent to be violative of the Assam District & Sessions Judge s Establishment (Ministerial) Service Rules, 1987 (for short hereinafter referre d to as the Rules, 1987) and thus patently non est. Emphatic reference has also been made to Rule 10 & 11 of the Assam Family Courts Rules, 1990 (also hereinaf ter referred to as the Rules, 1990).

06. The Respondent No.1, in the parawise comments furnished in respo nse to the averments in the WP(C) No.1476/2012 while admitting the appointment o f the petitioner to the post of Nazir in the establishment of the Family Court, Silchar, Cachar against a sanctioned post, has categorically denied that he had been discharging the duties and responsibilities of the post of Superintendent a s a full-fledged incumbent thereof. His claim of performing the duties of the S uperintendent of Family Court, Silchar, Cachar from 07.08.2007 continuously and without any break has also been denied. According to Respondent No.1, the post of Superintendent, Family Court is not a promotional one from that of Nazir and that accordingly, in view of a vacant (post of Superintendent), the impugned a dvertisement was issued disclosing, inter alia the conditions of eligibility for participation in the process for recruitment thereto. The Respondent No.1 has p ointed out further that the petitioner in WP(C) No.1476/2012 having applied for the post of Superintendent in response to the advertisement, he was estopped fro m challenging the validity thereof.

07. The learned counsel for the petitioners while reiterating their pleaded assertions, have referred in particular to the 1987 Rules and 1990 Rules to insist that having regard to the constitution of the cadre of the staff of F amily Court and Rule - 11 of the 1990 Rules, in particular the post of Superinte ndent is essentially a promotional one, and therefore the advertisement is paten tly illegal and repugnant to the Rules and is thus null and void. Adverting to Rule 11(2) of the 1990 Rules in particular, the learned counsel have urged that it would be apparent from the 1987 Rules that the post of Superintendent is to b e filled up by promotion from the feeder post of the staff of the Family Court. Whereas, the learned counsel for the petitioner in WP(C) No.1476/2012 has urged that the post of Nazir is a feeder post thereto and that he (petitioner) having been entrusted with the duties and responsibilities of the said promotional post over the years, he is entitled to be preferred therefor, it has been maintained on behalf of the petitioner in WP(C) No.2749/2012 that the post of Nazir being subordinate to that of UDA, this claim is wholly unsustainable. According to Mr. Roy, Md. Arif Uddin Laskar, UDA of the Family Court, Silchar, Cachar being the only eligible candidate for promotion, he ought to be, in terms of the Rules, pr omoted thereto.

08. Mr. Nair has urged with reference to Rule 10 and 11 of 1990 Rule s and Rule 6 of the 1987 Rules that a conjoint reading thereof would unambiguous ly suggest that the post of Superintendent in the establishment of the Family Co urt is to be filled up by promotion in terms of the prescriptions of Rule 6(3) o f the 1987 Rules. This, the learned Standing Counsel has pleaded is reinforced by the definition of expression (cid:28)District & Sessions Judges Establishment (cid:29) provi ded in Rule 2(3) of the 1987 Rules. He, however has urged, adverting to the sta ff pattern of the Family Court as well as the order (s) sanctioning posts theref or that there being one post of U.D. Assistant in the establishment, having rega rd to the requisites of Rule 6(3), the zone of eligible candidates ought to be e nlarged in order to obviate the possibility of routine promotion of the only inc umbent in the post of U.D. Assistant. On being queried by this Court, Mr. Nair has clarified that no selection has yet been made in the process initiated by th e impugned advertisement. The learned Standing Counsel to buttress his contenti ons placed reliance on the decision of Apex Court in Union of India & Anr. -vs- C. Dinakar, IPS & Ors., 2004(6) SCC 118.

09. ments on record as well as the rival submissions advanced. We have duly considered the pleaded facts together with the docu The petitioners, to reiterate, are in service with the Family Co urt, Cachar, Silchar and in unison have assailed the advertisement contending th at the post of Superintendent in their establishment is a promotional one and th erefore no direct recruitment thereto is contemplated. Admittedly, the petition ers in WP(C) No.1476/2012 and WP(C) No.2749/2012 are as on date serving as Nazir and U.D. Assistant of the Family Court, Cachar, Silchar respectively in substan tive capacity, though, both of them claimed to have been discharging additional responsibilities as entrusted to them from time to time.

10. Rules 1990 have been framed by the State Government in exercise of its powers under Section 23 of the Family Court’s Act, 1984. Rule 10 define t he staff strength thereof providing amongst others, one post each of Superintend ent and U.D. Assistant and three posts of L.D. Assistant. The official communication No.JDJ(E) 24/2002/76 dated 19.01.2006 of the Joint L.R. and Joint Secretary to the Government of Assam, Judicial Dep artment, conveyed the sanction of posts as enumerated therein for the establishm ent of the Family Court at Silchar. As this document would reveal inter alia o ne post of Nazir with the pay scale of Rs.3850 - 7350/- equivalent to that of U. D. Assistant was added to the cadre strength reflected in Rule 10 of 1990 Rules. The retention of these posts for the period beyond 28.02.2006 as referred to i n the letter dated 19.01.2006 was conveyed by the communication No.JDJ(E) 24/2002/100 dated 04.08.2007. As is submitted at the Bar, these posts con tinue to exist in the establishment of the Family Court, Cachar, Silchar, as on date.

11. sent adjudication deserves extraction as hereinbelow: Rule 11 of the 1990 Rules having a formidable bearing on the pre

11. (cid:28)Terms and conditions of services. (1) Except otherwise expr essly provided in these Rules, the terms and conditions of service of the staff referred to in the foregoing rule shall be the same as that of the corresponding grade in the establishment of the District and Sessions Judge. (2) The post of Superintendent referred to in item No.1 of R. 10 (1) shall be equivalent to that of Sheristadar in the establishment of the Distr ict and Sessions Judge. (cid:29) It would be apparent from the above quote that subject to the pr ovisions otherwise expressly made in the 1990 Rules, the terms and conditions of service of the staff of the Family Court would be the same as that of the corre sponding grade in the establishment of District & Sessions Judge. Further, the post of Superintendent appearing in Rule 10(1) has been declared to be equivale nt to that of Sheristadar in the establishment of the District & Sessions Judge. The expression (cid:28)District & Sessions Judges Establishment (cid:29) has be en defined in Rule 2(3) of the 1987 Rules as hereunder: (cid:28)District & Sessions Judge Establishment means and includes all non-gazetted ministerial staff in the office of the District & Sessions Judge, A dditional District & Sessions Judge, Special Judge and Munsiffs of the District. (cid:29) Rule 3 of these Rules prescribes the cadre of service with the p 12. ost of Sheristadar of District & Sessions Judge, Addl. District & Sessions Judge , Asstt. District & Sessions Judge and Munsiff as well as Head Assistant, Superv isory Assistant, Upper Division Assistant and Lower Division Assistant. Each of the categories of posts as this provision of the Rules enjoin form an independe nt cadre and a member of lower cadre would have no claim for appointment to any of the higher cadres except in accordance with the provisions made in the Rules. The District & Sessions Judge’s Establishment as defined hereina bove thus means and includes all Non-Gazetted Ministerial Staff in the office of the District & Sessions Judge, Addl. District & Sessions Judge, Asstt. District & Sessions Judge, Special Judge and Munsiffs. In view of this inclusive defini tion, in our estimate, the post, Sheristadar of Asstt. District & Sessions Judge can be construed to be equivalent to that of Superintendent in the establishmen t of the Family Courts as contemplated in Rule 11(2) of the 1990 Rules. Consequ entially, Rule 6(3) of the 1987 Rules would be attracted to determine the proced ure for filling up the post of Superintendent, Family Courts. Rule 6(3) enjoins that the post of Sheristadar of Asstt. District & Sessions Ju dge, Supervisory Assistant and Sheristadar of the Court of Munsiff would be fill ed up by promotion from amongst Upper Division Assistants of the District and Se ssions Judges establishments who have rendered not less than seven years of serv ice in the District & Sessions Judge’s Establishment (Ministerial) concerned, ou t of which, at least three years is continuous service as Upper Division Assista nt in that establishment on the first day of the year in which the promotion is made. This provision of the Rules prescribes Seniority-cum-Merit to be the crit eria for promotion. The preparatory steps for the contemplated process of promo tion have been detailed in the note appearing under Rule 6(3). It would thus be evident from the mandate of Rule 6(3) of the 19 13. 87 Rules that an Upper Division Assistant who has rendered not less than seven y ears of service in the District & Sessions Judge’s Establishment (Ministerial) o ut of which three years is continuously as Upper Division Assistant in that esta blishment, would be eligible for promotion to the post of Sheristadar of Assista nt District & Sessions Judge considered to be equivalent to that of Superintende nt in the establishment of the Family Courts. Adverting to the staff pattern of the Family Court at Cachar Sil 14. char, there being one post of Upper Division Assistant, the incumbent thereof un less unfit would thus be the automatic choice for promotion to the only post of Superintendent. This amongst others may precipitate stagnation as well as eve ntuate undeserving promotional benefits. It is, thus, in the perspective of th e length of qualifying service mentioned in Rule 6(3) with the in built flexibil ity noticeable in it, that it would be expedient, in order to ensure an enlarged zone of consideration that other posts, equivalent to that of Upper Division As sistant but satisfying the conditions of eligibility referred to in Rule 6(3) be contemplated to be feeder posts for such promotion. Further candidates serving as UDA in the District & Sessions Judge’s establishment for a continuous period of three years but had served in all seven years or more in the same establishme nt in some other post would also be eligible for such promotion. This understand ably would require a fresh look into the relevant Rules for necessary clarificat ions.

15. Be that as it may, in our comprehension, having regard to the pr esent state of the Rules involved, the inevitable conclusion has to be that the post of Superintendent for the establishment of Family Courts is one to be fil led up by promotion and not by direct recruitment. The impugned advertisement d ated 16.12.2010 and the process initiated on the basis thereof is collectively a djudged to be illegal and non est in law. The authorities concerned would now t ake appropriate steps to facilitate the filling up of the post of Superintendent in the establishment of Family Court, Cachar, Silchar. No costs. The petitions are allowed to the extent indicated hereinabove.