High Court · 2009

2. I have heard Mr N.Dutta, Senior Advocate assisted by Mr I. Chou dhury, Advocate for the petitioners and Mr MR Pathak, learned Standing Counsel, Education Department for the respondents.

3. The rival pleadings in brief, would have to be traversed to outl ine the respective factual projections. The petitioners contend that they are al l eligible for being selected to Grade III(LDA/UDA) posts under the Directorate of Secondary Education, Assam and had duly registered themselves under the Empl oyment Exchange, Department of Labour, Govt. of Assam. Out of them, the petition er No.9 along with Shri Ratul Choudhury and Shri Nripen Das are in service as o n date as Computer Operator in the DTP works in the aforementioned Directorate a nd the office of the Commissioner and Secretary to the Govt. of Assam, Education Department. The Deputy Secretary to the Govt. of Assam , Education(S) Department by his lett er No.ND(3)S.358/2001/322 dated 14.12.2005 while requesting the Director of Sec ondary Education, Assam to initiate a process of selection to fill up 24 posts of Grade III(LDA) lying vacant in the office of the Inspector of Schools includi ng High/Higher Secondary Schools, also instructed him to obtain the names of the candidates from the local Employment Exchange and submit the information in t he prescribed format for obtaining the approval from the Finance (SIU) Depart ment for filing up the vacancies. Thereafter by notification No. B(3) S.358/2001 /338 dated 17.1.2006, the Government constituted the District Level Selection C ommittee for selection against the abovementioned posts. In quick succession the reto, however, by a notification No.B(3) S.358/2001/340 dated 17.1.2005(sic) /1 8.1.2006, a State Level Committee for selection of candidates against the vacanc ies in the Grade III and Grade IV posts in the offices mentioned therein includi ng that of the Inspector of Schools and Government Secondary Schools was constit uted in supersession of the earlier mentioned notification dated 17.1.2006. This , the petitioners have maintained was presumably for the purpose of administrati ve convenience and expedition of the selection process in respect of the vacanci es referred to in the latter notification.

4. Subsequent thereto, the Director of Secondary Education, Assam b y his letter No.NDSR/ESTT/1/2005/13 dated 24.1.2006 forwarded a request to the Director of Employment and Craftsmen Training, Guwahati to forward the names of candidates for filling up Grade III and Grade IV posts in his Directorate. The p etitioners have asserted that though by this letter the requisition to fill up o nly 14 posts of Assistant was made, a request for candidates for filling up 10 m ore posts was also made thereafter. In response thereto in all, the Department o f Labour and Employment, Govt. of Assam forwarded names of 594 candidates vide l etters dated 17.2.2006 and 22.2.2006 of the Assistant Director of Employment Exc hange, District Employment Exchange, Guwahati to the Director of Secondary Educa tion, Assam. In continuation of the process, the Commissioner and Secretary ( S & E) Departme nt by his letter No.ASE/21/2006 /8 dated 18.2.2006 instructed the Director of Se condary Education, Assam to inform the said candidates of the date, time and ven ue of the interview as mentioned therein. According to the petitioners, 238 can didates appeared in the type writing test and interview for selection to the pos t of LDA. Eventually, in the meeting of the State Level Committee held on 27.2.2 006 , 24 candidates including the petitioners were recommended for appointment to the post of LD Assistant(Grade III) in the office of the Directorate of Secon dary Education, Assam and the Inspector of Schools, KDC.Kamrup. Pursuant thereto , the Commissioner and Secretary to the Govt. of Assam, Education (S&E) Departme nt by his communication No.EB/S.358/241 dated 27.2.2006 while forwarding the min utes of the aforementioned meeting to the Director of Secondary Education, Assam intimated the latter to issue appointment orders to the recommended candidates mentioning the places of their posting, subject, however to observance of all ne cessary formalities as required as per the Rules. 5. While the process lingered at that stage, the model code of conduct relating to State assembly election was enforced and resultantly some restricti ons were clamped following the Election Commission’s instructions in that regar d. This was inter alia communicated to the Education( S & E) Department by the Chief Electoral Officer, Assam by his letter NO.ELE.110/2006/Pt/39 dated 11.4.2

6. All formalities thus being complete, the petitioners waited in anxious expectation for their appointment only to encounter the inexplicable delay on the part of the State respondents. Being aggrieved by such an inert di sposition of the official respondents , they along with other selected candidat es instituted WP( C) Nos 939/2007, 857/2008 and 962/2007 before this Court prayi ng for a direction to the State respondents to appoint them in accordance with law. These petitions were eventually disposed of on 11.5.2007 leaving the State respondents at liberty to fill up the posts of LDA (Grade III) in the office of the Director of Secondary Education and the Inspector of Schools, KDC from the r elated select list in accordance with law. While passing the above order, this C ourt noted that the selection of the petitioners was not in dispute and that the learned counsel for the parties had submitted that they could not be appointed due to the code of conduct imposed following the announcement of the election t o the State Assembly. The approval of the department of Finance, Govt. of Assam was also taken note of by the Court. It was at this stage that the impugned let ter dated 12.12.2007 was issued by the Under Secretary to the Govt. of Assam , Education(S) Department apprising the Director of Secondary Education, Assam tha t the appointment to Grade III posts in his Directorate would be governed by th e Rules and that the selection therefor has to be made as per Rule 12(1) thereo f as predicated in the circular No.ABP.123/2001/257 dated 23.10.2006 of the Dep artment of Personnel(B) ,Govt. of Assam. Thereby it was underlined that the earl ier notification(s)/instruction(s) stood modified and the Director of Secondary Education , Assam was requested to start the process for appointment of LD Ass istant in his Directorate anew as per the provisions of the aforesaid Rules an d procedure treating the earlier select list as cancelled.

7. The petitioners have asserted that the factual details obtained by them from various other departments of the Government of Assam under the Right t o Information Act, 2005 pertaining to the procedure adopted by them for appoint ment to the post of LDA (Grade III) demonstrate in clear terms that since the ye ar 1988 those have also pursued the same mode of selection as adopted in their case following which they had been recommended for appointment. The petitioner s have maintained that to the best of their knowledge and information , the Di rector of Employment and Craftsmen and Training has not administered any selec tion in respect of any such departments since the year 1988. The impugned decis ion has thus been emphatically repudiated by them to be arbitrary , unreasonabl e, unjust and discriminatory ,in violation of Articles 14 and 16 of the Constitu tion of India.

8. The State of Assam in the Education Department , in its affidavit a ffirmed by the Under Secretary thereof, while emphasizing on the essentiality of the observance of the Rules ,more particularly Rule 12 thereof for selection of candidates for appointment to the post of LD Assistant under the administrati ve departments/Head of departments etc. including the Education Department, has insisted that though Rule 22 mandates relaxation of the rigour of any provision of the Rules, it is the Personnel (B) Department which is the only competent a uthority to invoke the power therefor. As no relaxation by the Personnel(B) Depa rtment had been made and instead observation of the Rules had been insisted upo n by it as would be apparent from the circular No.ABP.123/2001/257 dated 23.10.0 6, the Directorate of Employment and Craftsmen Training only was authorized to c onduct the process of selection. According to the answering respondent neither t he details of the selection procedure nor the minutes of the State Level Select ion Committee is traceable in the Government file. The letter No.B(S). 358/2001 dated 27.2.2006 of the department forwarding the minutes of the State Level Sele ction Committee to the Directorate of Secondary Education, Assam with the instru ctions for appointment of the recommended candidates is also not on record. The answering respondent has also expressed reservation on the unusual alacrity with which the meeting of the Selection committee was held and the select list was f orwarded to the Directorate for implementation. The factum of enforcement of the model code of conduct has been referred to. Incidentally, it has been mentione d as well that the Chairman of the State Selection Committee was due to retire o n 28.2.2006 ie. a day subsequent to the one on which the minutes of the Committe e had been drawn up and forwarded to the Directorate of Secondary Education, Ass am. That pursuant to the model code of conduct on the eve of the State Assembl y Election ,2006, the process of appointment had been stopped, however, has been admitted. While, the answering respondent has conceded that the clarification of Finance( SIU) department had been intimated to the Director of Secondary Education for al l categories of posts, it ,has however, been denied that the same extended to the appointment of the petitioners as claimed. It has been clarified that after the disposal of the aforementioned writ petitions by this Court vide its order d ated 11.5.2007 granting the respondents liberty to fill up the posts involved i n accordance with law, the Department obtained the view of the Legal Remembrance r as well as Personnel(B) Department and the latter insisted on compliance of t he provisions of Rule 12(1) in reiteration of its circular dated 23.10.2006. A ccording to the answering respondent as the Rules are still in force, no departu re therefrom is permissible and therefore, the impugned decision is valid in law .

9. Whereas, the respondent No.5 in his affidavit through the Assista nt Director of Employment Exchange, Guwahati has admitted that in response to th e request forwarded by the Director of Secondary Education, Assam by letter No.D ET(B) 01/09/05 dated 7.2.2006, the District Employment Exchange, Guwahati had sp onsored candidates including the petitioners to the Directorate of Secondary Ed ucation, Assam, the Respondent No.6 , Director of Employment and Craftsmen Train ing, Assam, in his affidavit while acknowledging his role under Rule 12 to condu ct the process of direct recruitment to Grade III and Grade IV posts under the o ffices of the Heads of Departments as referred to the office Memorandum No.ABP/1 01/75/Pt/1/4 dated 31.7.75 and the circular No.ABP.123/2001/257 dated 23.10.2006 of the Department of Personnel(B) in this regard has admitted that his Direct orate had conducted said exercise till the year 1988 and that due to various re asons including the ban on direct recruitment and appointment , no further proc ess had been undertaken thereafter till 2006. The initiation of the process by the Director of Secondary Education, Assam to fill up the vacancies in Grade II I and Grade IV posts in his Directorate as well as in the office of the Inspect or of Schools, Karmup District Circle, Guwahati has been admitted. The answerin g respondent endorsed the fact that the Employment Exchange had been instruct ed to forward the list of candidates from his Directorate. It has been stated f urther that pursuant to the letter No.ABP. 123/2001/257 dated 23.10.2006 of the department of Personnel(B), the Directorate of Employment and Craftsmen Training as in the meantime, issued an advertisement soliciting applications for the pos ts of Junior Assistant and Grade IV to draw up a panel to fill up the correspond ing vacant posts in the offices of the Heads of the departments of Assam and tha t the written examination in connection therewith has already been held on 23.3 .2008. The deponent has affirmed that the process pertaining thereto is in progr ess. 10. Mr Dutta has strenuously argued that the impugned decision of re initiating the process in terms of the Rules is in violation of and disregard to the undertaking given by the State respondents before this Court on the basis of which the earlier writ petitions had been disposed of on 11.5.2007. It havin g been candidly admitted on behalf of the State authorities that the petitioners had been duly selected for recruitment to the posts involved and that their a ppointments could not be effected for the enforcement of the model code of co nduct at the relevant point of time and as this Court recording the same had per mitted them to complete the process in accordance with law as represented by the m, this sudden turn around is a contemptuous affront to the Court, he urged. Th e learned Senior counsel was trenchant in maintaining that as the undertaking as on date has not been withdrawn and the order of this Court has attained its fi nality, in absence of any appeal or review, it is assuredly impermissible for th e State respondents to retrace therefrom and therefore, the impugned decision is per se non est in law. Mr Dutta has urged that not only the endeavour to in itiate a fresh process in essence tantamounts to supersession of the order of t his Court, the statement made in the impugned letter dated 12.12.2007 that an af fidavit incorporating the necessity of compliance of the Rules had been filed in the connected writ petitions is not borne out by the records and being a de liberate misstatement calls for a deterrent punitive action. Referring to the documents annexed to the writ petition , bearing on the process of recruitment to Grade III and Grade IV posts therein, undertaken by various other departments of the State, the learned Senior counsel has insisted that the same would une quivocally proclaim that though generally the Directorate of Employment and Cra ftsmen Training is required to conduct the procedure therefor, the same has not been adhered to and the method pursued in respect of the petitioners had been invoked continuously for almost a decade. In course of the arguments, Mr Dutt a has also drawn the attention of this Court to a number of advertisements of 20 08-09 in various local dailies to bolster his plea that even as on date , the Director of Employment and Craftsmen Training though required under the Rules ha s not been associated with any of such exercises and that the front assumed by the State respondents vis a vis the petitioners is only a pretension on colla teral considerations. The learned Senior Counsel has thus maintained that in th e attendant facts and circumstances , even in the perspective of law of desuetud e due to consistent non compliance of the Rules, the provisions thereof stood d enuded of their mandatory essence and thus the impugned decision to cancel the earlier selection under the cover thereof (Rules) is patently faulty and unjust ifiable in law. To buttress his arguments, Mr Dutta has placed reliance on the f ollowing decisions of the Apex Court in - (i) (ii) egistrar vs. Bhikalal Join and others ; 1992(Supp)1 SCC 584, N. Suresh Nathan vs. Union of India; 1992(1) SCC 105, Uma Kant University of Rajasthan , Jaipur through its R (iii) (iv) 1993(Supp) 2 SCC 419, M.B. Joshi vs. Satish Kumar Pandey 1995(3) SCC 434, Municipal Corporation for City of Pune vs. Bharat Jorge Company Ltd. (v) (vi) 1997(9) SCC 450, Cantonment Board Mhow : vs. Cantonment Board Saugar,MP State Road Transport Corpn REWA transport Services Rewa. (vii) 2006(6) SCC 673, Arvinder Singh Bains vs. State of Pubjab.

11. Per contra, Mr Pathak has submitted that the Rules being admittedly a n enactment in exercise of powers under Article 309 of the Constitution of Indi a, the same is binding on all concerned and therefore, the selection and appoint ment as claimed by the petitioners being in contravention thereof is outright ly null and void. While admitting that no affidavit in the writ proceedings dis posed of by this Court on 11.5.2007 had been filed by the State respondents and that a reference thereof in the impugned order is therefore unwarranted, the lea rned Standing counsel has generally reiterated the stand recorded in the affidav it of the respondent No.1. When queried by this Court, Mr Pathak could not vouch safe that the Rules are being followed as on date in all other departments of th e Government.

12. I have lent my conscious consideration to the pleadings on reco rd and the rival submissions. The existence of the Assam Directorate Establishme nt (Ministerial) Service Rules, 1973 is not in dispute . Incidentally, it is a l egislation in exercise of powers under Article 309 of the Constitution of India regulating the recruitment and conditions of service of persons appointed to th e Ministerial services to the various offices of the Heads of Departments , Govt . of Assam. Rule 2(iii) specifies Head of the Department as the appointing autho rity vis a vis the posts of the Superintendents, Upper Division Assistants, Lowe r Division Assistants and Typists as enumerated in Column I of Schedule I . Rule 1(2) makes the Rules applicable to the ministerial staff of the off ices of the Heads of Departments mentioned in the aforementioned schedule which at Sl. No.7 refers to (cid:28)Director of Public Instruction (cid:29) to be so in respect of Ed ucation(G) department of the State. Nothing has been brought on record to demon strate any amendments to this entry, though it is a matter of record that in th e meantime, Directorate of Public Instructions has been bifurcated into four D irectorates, namely, that of (1) Elementary Education(2) Secondary Education (3) Higher Education and (4) Madrassa Education. This assumes some significance for its bearing on the question of applicability of the Rules to the establishmen t of Director of Secondary Education as had also met the attention of the depar tmental authorities as revealed by the official records placed before this Cou rt. Be that as it may, the post of Lower Division Assistant is one lodged in the off ices of the Heads of Departments to which the Rules are intended to apply, Rule 10 mentions the three modes of induction, one of those being by direct recrui tment in terms of Rule 12 which prescribes the procedure thereof. The appoin ting authority thereunder has to make an annual assessment of the requirement of his staff and inform the Employment Exchange concerned at the beginning of e ach year. The Director of Employment and Craftsmen Training, Assam therein is i ndependent to conduct competitive examination at such intervals and in accordan ce with such instructions as the Government may from time to time direct and fo rward the names of suitable persons in order of preference and further get the character and antecedents of the selected candidates verified from the Deputy I nspector General of Police, Criminal and Investigation Department without waitin g for their actual appointments. The appointing authority, however, if it does n ot deviate from the order of preference for good reasons to be recorded in writi ng , would make recruitment therefrom. The Rules also prescribe the conditions of eligibility of candidates for the post of Lower Division Assistant or Typist including the academic qualifications , age etc. The office memorandum No.ABP.101/75/pt/1/4 dt. 31.07.95 and the official communi cation No.ABP.123/2001/275 dated 23.10.2006 of the Personnel(B) Department , Gov ernment of Assam outlined the process to be undertaken by the Director of Empl oyment and Craftsmen Training, Assam for recruitment to Grade III and Grade IV p osts in the offices of the Heads of Departments. Whereas, the office memorandum dated 31.7.75 delineates the procedure in conformity with Rule 12, the letter of the Personnel(B) Department dated 23.10.06 discloses the concern in view of the omission on the part of a few of the Heads of Departments to adhere to the Rules for recruitment to the post of Lower Division Assistant (presently re-desi gnated as Junior Assistant ) in their establishments . Thereby all the administ rative departments and the Heads of the Departments have been impressed upon to comply with the Rules and relevant circular(s) in the matters of such recru itment. Noticeably, a copy of the office memorandum and the letter referred to hereinabove had been forwarded to the Director of Employment and Craftsmen Train ing, Assam, Guwahati. The Rules and the documents alluded hereinabove therefore demonstratively stip ulate the compliance of the procedure referred to herein for the purpose of dire ct recruitment to the post of Lower Division Assistant or Typist in the offices of the Heads of Departments of the State.

13. In the above backdrop, the Respondent No.1’s stand in its counte r qua, the steps pertaining to the process of selection involving the petitione rs is construed to be evasive . There is no categorical denial of the process administered by the departmental authorities to fill up 24 Grade III (Lowe r Division Assistant) in the offices of the Director of Secondary Education, A ssam and the Inspector of Schools, Kamrup District Circle, Guwahati commencing with the letter dated 14.12.2005 of the Deputy Secretary to the Govt. of Ass am, Education(S) Department to the Director of Secondary Education, Assam, Kahil ipara, Guwahati requesting the latter to obtain the names of candidates from the local Employment Exchange and also to submit the required materials in the pres cribed format to obtain the approval from the Finance(SIU) Department for filli ng up these vacancies. The respondents have neither denied the constitution of t he State Level Committee in supersession of the District Level Committee compose d earlier for the same purpose and the initiative taken by the Director of Secon dary Education, Assam to obtain the names of candidates from the Director of Emp loyment and Craftsmen Training in connection therewith. , nor the response of the District Employment Exchange, Guwahati in forwarding the names of candidates as sought for. The letter dated 18.2.2006(Annexure-C to the writ petition) requiring the Director, Employment and Craftsmen Training to intimate the candidates recommended by him of the date, time and venue of the interview is a clear indicator of the approval of the highest authority of the department of the process then underway. The respondent No.5, Assistant Director of Employ ment, District Employment Exchange, Guwahati in his counter has clarified that t he District Employment Exchange headed by him is an establishment under the Dir ectorate of Employment and Craftsmen Training and that the list of candidates w as forwarded by him to the Director of Secondary Education, Assam on the instr uctions of the Director of Employment and Craftsmen Training. There is no disput e that the petitioners had been enlisted in the panel so forwarded by the Distri ct Employment Exchange, Guwahati and that they had duly participated in the sele ction that followed. Limited though, the Director, Employment and Craftsmen Trai ning, albeit did not conduct any competitive examination for direct recruitment to the post involved as comprehended by the Rules, his association with the pre paratory steps leading to the selection of the petitioners by the State Level C ommittee as evidenced by the minutes of its meeting held on 27.02.2006 is clear ly discernible. Thereby the petitioners were recommended to be appointed subjec t to police verification and observance of other formalities. The clearance of the Finance(SIU) Department for filling up the posts for which the petitioner s had been recommended was also granted as is attested by the letter No.ASE.46 6/2006/16 dated 3.5.2007 of the Deputy Secretary to the Govt. of Assam, Educatio n(S)Department addressed to the Director of Secondary Education, Assam. This evi dently is subsequent to the enforcement of the Election Commission’s guidelines relatable to the Assembly Election in the State vide letter No.ELE.110/2006/P t/39 dated 11.4.2006 of the Chief Electoral Officer, Assam.

14. The verification of the records of WP( C) No 857/2007( Miss Dipa D as Vs State of Assam and Ors) ,WP( C) No.939/2007( Arun Kumar Das and Ors vs. St ate of Assam and Ors) and WP( C) No.962/2007 ( Pankaj Medhi vs. State of Assam a nd Ors) do not reveal that any affidavit had been filed by the State Respondent s therein. A perusal of the order dated 11.5.2007 disposing of the same also do es not bear any semblance of reference thereof. This Court while disposing of th e said writ petitions by the aforementioned order noticed that the conduct of t he selection process as claimed by the petitioners was not in dispute and that according to the learned counsels the appointments did not follow in view of th e code of conduct saddled owing to the announcement of elections to the State Legislative Assembly. The approval of the Department of Finance ,the Govt. of As sam for the appointment as well as the submission on behalf of the State respon dents that needful would be done in accordance with law for the purpose of makin g appointment of persons selected was taken note of. This Court, in the above pr emise disposed of the petitions by granting liberty to the respondents to fill u p the posts in accordance with law. Significantly, as observed hereinabove, neit her any affidavit had been filed by the respondents, nor any reservation whatsoe ver was expressed on their behalf about the validity of the process or the eligi bility of the petitioners vis a vis the Rules. The pleaded stand of the State R espondents indicating against such selection is thus untenable.

15. The official records being No.ASE 108/2007 reveal a conflict of opi nion with regard to the course of action to be taken consequential to the order dated 11.5.2007 of this Court disposing of the aforementioned writ petitions in the above terms. The note dated 31.5. 2007 put up before the Deputy Secretary of the Department acknowledges a selection conducted by the Selection Committee n ot inconsonance with the Rules and that the plea had been taken in the affidavi t filed by the Respondents in WP( C)No.875/2007 (Miss Dipa Das vs. State of Assa m and ors). According to the note , the observations of this Court permitting t he State respondents to fill up the posts in accordance with law signified its affirmation that the selection conducted by the Selection Committee was not in accordance with the Rules and that therefore to avoid future complications a fr esh selection ought to be held through the Director of Employment and Craftsmen Training . The Departmental Minister, however, was in favour of appointments on the basis of the selection made and therefore advised that the matter be placed with the Judicial department for its comments/views. The Deputy Legal Remembrancer, Judic ial Department by his note dated 12.9.2007 was of the view that the Rules were n ot applicable to the Directorate of Secondary Education, Assam , it not being ca tegorized in Schedule I thereof to be an office of the Heads of departments of the State and opined that appointments be made from the select list in complia nce of the order dated 11.5.2007 of this Court. In view of the apparent inconsi stent comprehension , the view of the Personnel(B) Department was obtained .It however, emphasized on the compliance of the Rules and the procedure outlined in the office memorandum dated 23.10.2006. This view eventually prevailed culmin ating in the impugned letter dated 12.12.2007. While copies of the affidavits m eant for the three writ proceedings are available in the official records , the same do not bear out any indication to suggest the date/dates of their actual f iling in the court. The contents of these affidavits are identical with each oth er and are also substantially similar to the one filed by the respondent No.1 i n the instant case. In the above state of records, the incorporation of the statement in t he impugned order about the filing of affidavit in the earlier writ proceedings is not only a travesty of truth ,but also is redolent of reckless carelessness on the part of the State authorities. They are therefore cautioned to be meticul ously vigilant and circumspect in future. 16. Having regard to the state of the pleadings in the writ petitions di sposed of by this Court on 11.5.07 and the submissions recorded therein, it cann ot be construed that the State respondents were thereby permitted to re-enact t he selection by forsaking the one in which the petitioners had been selected a nd were awaiting appointments. The order of this Court, read as a whole does no t permit such a construction. Following excerpts thereof seem to be decisive. (cid:28) In view of the above, it is, now, submitted, on behalf of the respondents , that the respondents will do the needful in accordance with law for the purpos e of making appointments of persons, who stand selected in the said selection pr ocess. Considering, as a whole, the submissions made on behalf of the parties and in t he interest of justice, this writ petition is disposed of with liberty granted t o the Respondents to fill up the posts aforementioned in accordance with law. T he interim directions, passed in this case, on 13.03.2007, shall accordingly sta nd modified. (cid:28) Read conjointly , in the estimate of this Court, the respondents thereby were required to take essential steps in effecting the appointments of the persons a lready selected and to effectuate the same act in accordance with law. In abse nce of any objection on their behalf that the process undertaken was in contra vention of the Rules, the liberty granted to them to do the needful in accorda nce with law cannot logically be construed to be permissive of a discretion to launch a new exercise in accordance with the Rules. Such an interpretation would present contradictions in terms, not intended by this Court. This order , as is submitted at the Bar remains in force as on date and has therefore attained finality. Assuredly therefore, the decision to redo the process in accordance w ith the Rules could not have been unilaterally taken without reference to this Court. 17. The other equally significant facet of the lis is the continual depar ture from the Rules made by various offices of the Heads of departments of the State Government in the matter of appointment of Grade III and Grade IV posts th ereof. This is obviously demonstrated by the documents (Annexure-N collectively to the writ petition) , and the orders of appointments of 2008/2009 in the po st of LD Assistant/Junior Assistant in the various offices of the Heads of the Departments sans any association with the Director of Employment and Craftsme n Training, Assam as mandated by the Rules. As a matter of fact, the learned Sta nding Counsel when confronted by this Court did not in his usual fairness quest ion the veracity of these documents. He could not assert either that as on date , no process is being undertaken to fill up such posts in the offices of the He ads of the Departments except in accordance with the Rules. The mode of selecti on adopted by the department in which the petitioners had been selected ,thus ot herwise cannot be proscribed as an anathema to all known procedures of recruitme nts to such posts in vogue since long. 18. This determination though does not signify trivialization of the Ru les, in the facts and circumstances of the case, the belated application thereof in case of the petitioners to efface their prospects for appointment founded o n the order of this Court cannot be countenanced. The impugned letter dated 12. 12.2007 vis a vis the petitioners therefore warrants interference. There being no material on record to suggest any overt or covert act on their behalf to secu re any undeserved benefit for any one or more of them, they ought not to be pe nalized for no fault of theirs , more so after having participated in a public p rocess pertaining to appointments under the State. The appointment which the pe titioners seek if provided to them, would by no means tantamount to backdoor en tries in public employment without any modicum of a participatory process envisa ged therefor. The State respondents having consciously deviated from the prov isions of the Rules designing the different stages of the process, they ought not in the facts of the case and more particularly, having regard to the litiga tional background adumbrated hereinabove, be permitted to make a volte face to the detriment and prejudice of the petitioners. 19. The Apex Court in Municipal Corporation for the City of Pune (Supr a) while observing that the application of the law of desuetude in the country would advance the cause of justice recognized it to be a process by which throu gh disobedience or lack of enforcement for a long period, a statute may lose it s force without express or implied repeal. Their Lordships referred to Craies S tatute Law (7th Edn ) to enunciate that denudation of the potency of a legisla tive enactment by desuetude does not follow merely from obsolescence or disuse, but there must also be a contrary practice which must be of some duration and general application. The same view , in essence was reiterated in Cantonment Board(Supra) und erlining that long disuse of a statute and contrary practice for a appreciabl e period of time are the indispensable factors to emasculate a statutory enac tment of its binding efficacy. Though the respondent No.5 in his counter has admitted that the Directorate of Employment and Craftsmen Training ,Govt. of Assam had conducted examinations in terms of Rules upto 1988,whereafter no such process had been undertaken till 2 006 and documents placed on record testify independent processes pursued by v arious other offices of the Heads of Departments for recruitment to the Grade II I and Grade IV posts to the exclusion of the said Directorate , I do not feel p ersuaded however , having regard to the other materials on record to sustain t he plea based on law of desuetude . Judged on the touchstone of the criteria ins isted upon in the aforementioned decisions as sine qua non for application of th e law of desuetude , I am not inclined to sustain the contentions raised on beha lf of the petitioners on this count. 20. Nevertheless, on a totality of the considerations set out hereinabove , the petition has to be allowed. The impugned letter dated 12.12.2007 qua, c ancelling the process in which the petitioners had participated and had been rec ommended for appointment to Grade III posts i.e. Lower Division Assistant/Juni or Assistant as the case may be, in the Directorate of Secondary Education, As sam and the Inspector of Schools, KDC, Kamrup is hereby set aside. The petition is thus allowed to the extent as indicated hereinabove. No costs. The Registry would forward a copy of this judgment and order to the Chie f Secretary of the State drawing his attention to the observation of this Court in particular to paragraph 15 for necessary action.