Dr. Khagendra Nath Baishya vs State of Assam and Others

A.K. Patnaik, J.—This appeal is directed against the Judgment dried 30.8.1993 in Civil Rule No. 1544/90 of the learned Single Judge dismissing the writ application of the writ Appellant for a direction to promote him to the post of Under Secretary w.e.f. 20.9.76 and to the post of Deputy Secretary w.e.f. 1981 and to the post of joint Secretary in the Assam Legislative Assembly Secretariat, w.e.f. 20.9.86 together with all arrear pay, allowances etc.

The brief facts of the case are that the Appellant has passed M.A. and L.L.B., and has obtained Ph.D. B(Lib) Sc. Diploma in constitutional law and a Diploma in Parliamentary Institution and Procedure. Alter being duly selected by the Assam Public Service Commission, he was appointed in the Class 1 Gazetted post of Librarian in the pay scale of Rs. 1125-1975/- p.m. in the Assam Assembly Secretarial and joined the said post of Librarian w.e.f. 20.9.1971. On 20.9.71 the Respondent No. 4 (matriculate) was a Superintendent of Member Hostel of the Assam Legislative Assembly in the pay scale of Rs. 225-600/ p.m., Respondent No. 5 (sic) was an Accountant in the rank of Upper Division Assistant in the pay scale of Rs. 300-425/ p.m., Respondent No. 6 (B.A.B.T.) was a Cashier in the rank of Upper Division Assistant in the pay scale of Rs. 300/ to 425/, and all these three posts held by Respondents 4, 5 and 6 were Class-II non-Gazetted posts. But thereafter the Respondent No. 4 was promoted to the post of Under Secretary w.e.f. 16.8.79 and to the post of Deputy Secretary w.e.f. 1.1.1985, Respondent No, 5 was promoted to the post of Under Secretary w.e.f. 25.6.1982 and to the post of Deputy Secretary w.e.f. 13.8.1990 and Respondent No. 6 was promoted to the post of Under Secretary w.e.f. 25.6.1982 and to the post of Special Officer in the rank of Deputy Secretary w.e.f. 19.2.1986. Whereas the Appellant was promoted to the post of Under Secretary only on 31.10.86 i.e. several years after the Respondent No. 4, 5 and (sic) promoted to the post of Under Secretary despite the fact that the Appellant had higher qualifications, and held a Gazetted Class-I post and drew higher pay scale in year 1971, when he joined as Librarian while the three Respondents held non-Gazetted Class-II posts with lower scale of pay in the year 1972. The Appellant therefore felt aggrieved by such injustice caused to him on account of earlier promotions being given to the Respondent 4, 5 and 6 and the promotion being denied to the Appellant and he filed representations from time to time. True copies of the representations dated. 24.1.86, 3.9.89 and 6.7.90 and 3.8.90 of the Appellant to the different authorities are annexed to the writ petition as Annexure 2, 3, 4 and 5 respectively. When the said representations did not yield any result, the Appellant finally filed Civil Rule No. 1544/90 before this Court for direction to promote turn to the post of Undersecretary, Deputy Secretary and Joint Secretary in the Assam Legislative Assembly Secretariat w.e.f. 1976, 1981 and 1986 respectively with all arrear pay and allowances. But by the impugned Judgment dated 30.8.1993 the learned Single Judge dismissed the writ petition on the ground of delay stating therein that grant of any relief to the Appellant would being instability and insecurity in the service career of the Respondents No. 4, 5 and 6 after long lapse of time. It is this Judgment of the learned Single Judge which is under challenge in this appeal.

Mr. U.K. Das, learned Counsel for the Appellant submitted that the learned Single Judge should not have dismissed the writ petition on the ground of delay as there were circumstances to explain the delay in filing the writ petition and brought to our notice representations filed by the Petitioner from time to time and further submitted that once the writ petition was admitted for consideration on merit, justice and (sic) play should not have been denied by dismissing the writ petition on the ground of delay. In view of his submission of Mr. Das, we permitted him to make his submissions on the merits of the case.

On the merits of the case Mr. Das submitted that the Assam Legislative Assembly Secretariat (Recruitment and Condition of Service) Rules 1986 (for short the 1986 Rules) were framed by the Governor of Assam under Clause (3) of the Article 1 87 of the Constitution of India which came into force by Notification dated 28.10.86. Rules 3 and 4 of the 1986 Rules on which reliance has been placed by Mr. Das, learned Counsel for the Appellant, are quoted herein below:

Rule 3 : Constitution of the service and its strength (1) There shall be constituted a Service to be known as the Assam Legislative Assembly Secretarial Service consisting of the Cadre and posts specified in Schedule I on coming into force of these Rules.

(2)The Speaker may, from time to time leave unfilled of hold in abeyance, any post or increase the cadre by creation of additional permanent or temporary posts as may be found necessary.

Rules 4 : Absorbtion of existing members of the Service:- The existing members of the Service shall be deemed to have been absorbed in their respective posts from the date of their appointment as if they were appointed under these rules.

Mr. Das submitted that in Schedule I to the 1986 rules the post of Librarian has been included as a Class-I post of the aforesaid cadre of the Assam Legislative Assembly Secretariat Service and under Rule 4 of the 1986 Rules quoted above all the existing members of the service are deemed to have been absorbed on their respective posts from the dates of their appointment as if they were appointed under the 1986 rules. Accordingly, Mr. Das submitted that by virtue of the said Rule 4 of the 1986 Rules the Appellant was appointed as (sic) w.e.f. 20.9.71 and is deemed to have been absorbed in the Class I Gazetted post of Librarian w.e.f. 20.9.1971 as if he was appointed under the 1986 Rules, But by virtue of aforesaid Rule 4 of the 1986 Rules, Respondents 4, 5 and 6 also are deemed to have been holding the post of Superintendent Member Hostel, Accountant and Cashier respectively on 20.9.71, which arc Class III non-Gazetted posts as per Schedule-I, 1980 Rules. Accordingly by virtue of Rule 4 of the 1986 Rules the Appellant was holding a superior post with a higher scale of pay and was thus senior to Respondents No. 4, 5 and 6 in the cadre of the Assam Legislative Secretariat Service.

Mr. S.A. Laskar, counsel for the Respondent No. 1, 2 and 3 on the other hand submitted that prior to 28.10.86, the post of Librarian was not a cadre post of the Assam Legislative Assembly Secretariat Service and was only a technical post, whereas the posts held by Respondent No. 4, 5 and 6 were all cadre posts and accordingly the Appellant could not claim seniority over the said Respondent Nos. 4, 5 and 6. Mr. Laskar further submitted that the aforesaid Rule 4 of the 1986 Rules was not a rule of seniority and at any rate did not confer seniority in the Assam Legislative Assembly Secretariat Service on the Appellant over the Respondent Nos. 4, 5 and 6 who have been in service prior to the appointment of the Appellant as a Librarian w.e.f. 20.9.1971.

In our opinion the aforesaid contention of the Appellant is based on a misconstruction of the 1986 Rules. In Rules 2(0) of the 1986 Rules "existing member" has been defined to mean a member who is holding a post mentioned in Schedule-I. When the 1986 Rules came into force on 28.10.91 the Appellant was holding the post of Librarian and accordingly by virtue of Rule 4 of the 1986 Rules, the Appellant was deemed to have been absorbed in the post of Librarian from the date of his appointment on 20.9.71, On 28.10.86, when the 1986 Rules came into force Respondent No. 4 was holding the post of Deputy Secretary and under the said Rule 4 he is deemed to have been absorbed in the said post of Deputy Secretary from the date of his appointment as such Deputy Secretary i.e. 1.1.1985 as if he was appointed under the 1986 Rules. Again, on 28.10.86 Respondent No. 5 was holding the post of Under Secretary and is accordingly deemed to have been absorbed in the post of Under Secretary from the date of his appointment as such Under Secretary i.e. 20.5.82 as if he was appointed under the 1986 Rules. And on 28.10.86, Respondent No. 6 was holding the post of Special Officer equivalent to the Deputy Secretary and therefore under Rule 4 is deemed to have been absorbed in the said post of Deputy Secretary from the date of his appointment as such Deputy Secretary i.e. 19.2.86 as if he was appointed, under the 1986 Rules, On such an interpretation of Rule 4 of the 1986 Rules, the Appellant who was only holding the post of Librarian as on 28.10.86 could not possibly be senior to Respondents 4, 5 and 6 who were holding the posts of Deputy Secretary, Under Secretary and Deputy Secretary respectively on the said date. The Appellant''s contention therefore that he was senior to the Respondents 4, 5 and 6 virtue of Rule 4 of the 1986 Rules has no merit and is rejected.

The next contention of Mr. Das, learned Counsel for the Appellant was that since under the aforesaid Rule 4 of the 1986 Rules the Appellant is deemed to have appointed as Librarian w.e.f. 26.9.71, he completed 5 years service as such Librarian on 19.9.76 and therefore became eligible to be considered for promotion to THE post of Under Secretary on that date under sub Rule 4 of Rule 9 of the 1986 Rules and accordingly should be declared to have been promoted to the post of Under secretary w.e.f that date. Similarly, Mr. Das submitted that under sub Rules 3 and 2 of Rule 9 the Appellant became eligible to be promoted to the post of Deputy Secretary and Joint Secretary in Sept'' 81 and Sept'' 86 on completion of required number of 5 years of service as Under Secretary and Deputy Secretary respectively. Mr. Laskar, learned Counsel for the Respondent No. 1 and 2 on the other hand submitted that to no such declaration can be given by this Court because prior to the 1986 rules there was no provision in the Rules for promotion of Librarian to the post of Under Secretary and as soon as the 1986 Rules came into force w.e.f. 28.10.86, the Appellant was promoted to the post of Under Secretary w.e.f. 30.10.86.

In our view, there is nothing in the 1986 Rules which direct that Rule 9 of the said Rules is to be given retrospective effect and now it is settled law that unless the rules expressly or by necessary implication direct that a particular rule is to be given retrospective effect, the rule would have only prospective operation. Rule 9 of the 1986 Rules therefore came into operation only on 28.10.86 and accordingly the Appellant could not have been promoted to the post of Under Secretary on the basis of the sub Rule 4 of Rule 9 w.e.f. 19.9.76 i.e. the date on which the Appellant completed the minimum 5 years service in the post of Librarian required for promotion to the post of Under Secretary. On the same reasoning the Appellant could not be promoted to the post of Deputy Secretary and Joint Secretary of the Assam Legislative Assembly Secretarial w.e.f. Sept'' 81 and Sept'' 86 respectively on the basis of Sub-rules 2 and 3 of Rule of the 1986 Rules which came into force only on 28.10.86.

Mr. Das ''hereafter submitted that in case this Court is not in a position to direct, promotion of the Appellant to the posts of Under Secretary, Deputy Secretary and Joint Secretary of the. Assam Legislative Assembly Secretariat, this Court can declare the Appellant to be eligible to the said post of Under Secretary, Deputy Secretary and Joint Secretary in the years 1976, 1981 and 1986 respectively and cited the decision of the Supreme Court in Ashim Kumar Bose V. Union of India reported in Dr. Asim Kumar Bose Vs. Union of India (UOI) and Others, and in particular paragraph 41 of the said decision. We are afraid we cannot possibly declare the Appellant to be eligible for the post of Under Secretary w.e.f. Sept'' 76, for the post of Deputy Secretary w.e.f, Sept. ''81 and for the post of Joint Secretary w.e.f. Sept. ''86 because prior to the 1986 rules which came into effect only on 28.10.86 a person holding the post of Librarian such as the Appellant was not eligible to be considered for promotion to any of the aforesaid posts of Under Secretary, Deputy Secretary or Joint Secretary in the Assam Legislative Assembly Secretariat. It is only after the 1986 Rules came into force w.e.f. 28.10.1986 that the Appellant became eligible to be considered for promotion to the post of Under Secretary in the Assam Legislative Assembly Secretariat and we find that on 31.10.86, the Appellant was in fact promoted to the said post of Under Secretary of the Assam Legislative Assembly Secretariat.

The last submission of Mr. Das was that the Appellant is a highly qualified person having done M.A., L.L.B., Bachelor''s Degree in Library Science, Diploma in Parliamentary Institution and Procedure, Diploma in Constitution Law and Ph.D. The Appellant has been a Librarian since 20.9.71 and could not be promoted to the higher posts of Under Secretary, Deputy Secretary and Joint Secretary because no promotion could be made under the Rules from the post of Librarian to the said posts but the Respondents No. 4, 5 and 6 who were less qualified and holding posts lower in rank and pay than that of the Appellant were promoted to the posts of Under Secretary, Deputy Secretary and Joint Secretary. After the 1986 Rules came into force providing for promotion from the post of Librarian to the post of Under Secretary, the Appellant could be promoted to the post of Librarian on 31.10.86. Mr. Das further brings to our notice the facts that Respondent No. 5 was promoted to the post of Deputy Secretary on 13.8.90 but before completion of 5 years in the said post, was promoted to the post of Joint Secretary on 31.12.91 and Respondent No. 6 was promoted to the post of Under Secretary on 25.6.82, but before completion of 5 years in the said post, was promoted to the post of Special Officer in rank of Deputy Secretary on 19.2.86 and accordingly if sub Rules 2 and 3 of the Rule 9 is not relaxed in the case of the Appellant, there will be discrimination. According to Mr. Das therefore this is a case of undue hardship suffered by the Appellant on account of operation of Sub-rules 2 and 3 of Rule 9, which provide for a minimum of 5 years experience as Deputy Secretary to be promoted as Joint Secretary and for a minimum of 5 years experience as Under Secretary to be promoted to the post of Deputy Secretary and equity and justice require that this Court direct the authorities to pass orders for relaxation of the said sub Rules 2 and 3 of Rule 9 of the 1986 Rules on the representation of the Petitioner dated 8th Sept'' 89 annexed to the Civil Rules 1544/90 as Annexure 3. Mr. Das cited the decisions of the Apex Court in the case of R.R. Verma v. Union of India (1980) Lab IC 749 and the case of Sayed Khalid Rizai v. Union of India (1994) 26 ATC 192 in support of this case of the Appellant f or relaxation.

Although no counter affidavit was filed by the Respondents in the said Civil Rule, an affidavit-in-opposition has been filed on behalf of the Respondent No. 3 the Secretary, Assembly Legislative Secretariat and in paragraph 7 of the said affidavit-in-opposition it has been stated that by order dated 17.6.86 of the Speaker Assam Legislative Assembly, a true copy of which annexed to the said affidavit-in-opposition as Annexure-I, all representations submitted by the Appellant were disposed of. By the said order dated 17.6.86 the Speaker, Assam Legislative Assembly had desired that the Appellant be allowed to appear before the Selection Board for promotion to the post of Under Secretary. But in the said affidavit-in-op-position on behalf of the Respondent No. 3 nothing has been stated with regard to the aforesaid representation dated 8th Sept''89 (Annexure - 3 to Civil Rule 1544/90) wherein a prayer for relaxation under Rule 22 of the Assam Legislative Assembly Secretariat Rule 1976 has been made by the Appellant after the aforesaid order 17.6.86 of the Speaker. In the circumstances therefore we presume that the said representation dated 8th Sept''89 of the Appellant for relaxation is pending.

Rule 22 of the 1986 Rules is quoted hereunder "When the Speaker is satisfied that the operation of any rule in the matter of conditions of service of an officer or any person serving in the Assembly Secretarial causes undue hardship in any particular case the Speaker may after consultation with Government, by order, dispense with or relax the requirements of the Rule or provision to such extent and subject to such conditions as may he considered necessary for dealing with the case in just and equitable manna.

Under the aforesaid rule, power have been conferred on the Speaker of the Assam Legislative Assembly to dispense with or relax the requirements of any rule to such extent as may be considered necessary for dealing with the case in just and equitable manner, if he is satisfied that the operation of any rule in the mailer of condition of service of an officer causes undue hardship in any particular case. The rule however requires that before passing any order for relaxation of any particular rule, the Speaker has to consult the Government in the matter. In the case of R.R. Verma v. Union of India 1980 Lab IC 749 the Supreme Court has held that such power for relaxation is vested in an authority to deal with unforseen and unpredictable situation and to relieve a civil servant from undue hardship and to do justice and equity and the exercise of such power is subject to judicial review on grounds now wellknown. The Apex Court has also observed in the case of Andhra Pradesh Government D.J. Roo (1977 Lab IC 3) that where the attention of the competent authority is drawn to a case of failure of justice, in such cases justice can be done by the authority by exercising the power for relaxation even with retrospective effect.

In the present case, the Appellant is a highly qualified officer of the Assam Legislative Assembly Secretariat and has held the Class I Gazetted post of Librarian from 20.9.1971 to 31.10.1986 and only on 31.10.1986 the Appellant was promoted to the post of Under Secretary, but in the meanwhile the Respondents 4, 5 and 6 who held Class III non-gazetted posts have been promoted to the posts of Under Secretary. Deputy Secretary and Joint Secretary, Thus there was no denying the fact that the Appellant has suffered injustice, but the injustice has been caused not by any authority but by the fact that before the 1986 rules, there was no scope for promotion of a Librarian to the post of Under Secretary and because of the fact that under Rule 9 of the 1986 Rules, the Appellant could not be considered for further promotion to the post of Deputy Secretary until he has completed 5 years service as such Under Secretary and cannot be considered for promotion to the post of Joint Secretary until he has rendered 5 years service as Deputy Secretary. The injustice therefore suffered by the Appellant is on account of the operation of the rules in the matter of condition of service and it is for such unforeseen cases of injustice that a reserve power has been vested not with the court but with the Speaker to relax the rules, if necessary even retrospectively, to do justice after consultation with the Government, Since the representation dated 8th Sept''89 of the Appellant (Annexure 3 in Civil Rule 1544/90) for such relaxation is pending we hope and trust that the Speaker of the Assam Legislative Assembly will pass orders on the representation of the Appellant within 4 (four) months from today. The impugned Judgment of the learned Single judge dated 30.8.93 in Civil Rule No. 1541/90 is accordingly modified and the writ appeal is disposed of.