SURENDRA KUMAR DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an appeal against the JUDGMENT & ORDER dated 20.5.1998 of the learned single judge in Civil Rule No. 5672/1997 dismissing the writ petition filed by the appellants.

(2.) The facts relevant for the purpose of disposal of this writ appeal are that the appellants No. 1,2 and 4 are working as Subject Matter Specialist in the Department of Dairy Development Government of Assam and the appellant No. 3 is working as Assistant Director in the said Department. In exercise of powers conferred under the proviso to Article 309 of the Constitution of India, the Governor of Assam has framed the Assam Animal Husbandry, Veterinary and Dairying Service Rules,1988, (for short, the 1988 Rules"), which regulate the recruitment and conditions of service of members of the Assam Animal Husbandry, Veterinary and Dairying Service. Sub-rule (5) of rule 11 of the 1988 rules provided that 25 % of the vacancies available in a year would be filled up by direct recruitment in all the promoted cadre posts. By advertisement No. 6/97 dated 14.11.1997, the Assam Public Service Commission (for short, "the APSC"), invited applications for two posts of Deputy Director and one post of Assistant Director in the Dairy Development Department. In the said advertisement, it was stated, inter alia, that the last date for submission of application forms to the office of the APSC was 4.12.1997. hi the said advertisement, it was further stated that candidates for the posts of Deputy Director and Assistant Director must have the basic degree or diploma in Dairy Technology and post-graduate degree or diploma or specialisation in Dairy Technology. Regarding experience, it was stated in the advertisement that candidates for the posts of Deputy Director should have minimum 8 years of service under Dairy Development Department, Assam, out of which 4 years should be in the administrative post, and candidates for the post of Assistant Director should have minimum 6 years experience under Dairy Development Department, out of which 3 years should be in the administrative post. The advertisement further stipulated that for the aforesaid two posts of Deputy Director and one post of Assistant Director, the age of the candidates should not be less than 35 years and more than 45 years as on 1.1.1997. The appellants having already crossed the age of 45 years as on 1.1.1997 could not apply for the aforesaid posts whereas the respondents No. 4 to 8 who were less than 45 years as on 1.1.1997 applied for the aforesaid posts. By notification dated 11.12.1997, the 1988 Rules were amended by the Assam Animal Husbandry, Veterinary and dairying Service (Amendment) Rules, 1997, (for short "the 1997 Amendment Rules"). The 1997 Amendment Rules, inter alia, deleted the aforesaid sub-rule (5) of rule 11 of the 1988 Rules. Sub-rule (2) of rule 1 of the 1997 Amendment Rules provided that the said 1997 Amendment Rules would come into force on the date of their publication in the Official Gazette. The appellants filed writ petition being Civil Rule No. 5672 of 1997 on 3.12.1997 praying that the advertisement No. 6/97 dated 14.11.1997 inviting applications for the posts of Deputy Director and Assistant Director in the Dairy Development Department of the Government of Assam be declared illegal, ultra vires and unconstitutional, and be quashed. In the said writ petition, the appellants also prayed for a direction on the State- respondents to regularise the appellants in the promoted posts held by them in the Directorate of Dairy Development, Assam, and to promote them to the next higher cadre. Affidavit-in-opposition were filed by the respondents in the said writ petition, parties were heard and by the impugned JUDGMENT & ORDER daled 20.5.1998, the writ petition was dismissed by the learned Single Judge. Aggrieved, the appellants have preferred this appeal.

(3.) At the hearing cf the appeal, Mr. BK Sharma, learned counsel appearing for the appellants, submitted that since sub-rule (5) of rule 11 of the 1988 Rules which provided for filling up of 25 % of the vacancies available in a year by direct recruitment in the promoted cadre posts stood deleted by the 1997 Amendment Rules by notification dated 11.12.1597, no direct recruitment could be made in the promoted cadre posts of Deputy Director and Assistant Director in the Dairy Development Directorate after 11.12.1997. He argued that the view taken by the learned Single Judge in the impugned JUDGMENT & ORDER that the 1997 Amendment Rules would not apply to the two posts of Deputy Director and one post of Assistant Director in the Directorate of Dairy Development advertised on 14.11.1997, is not correct in law. He cited the deciision of the Supreme Court in Vice Chancellor, University of Allahabad vs. AP Mishra, (1997) 10 SCC 264, in which the provisions of the Act for reservation in vacancies in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes were held to be applicable to posts which bad already been advertised. He also relied on the decision of the Supreme Court in Rajasthan Public Service Commission vs. Chanan Ram, AIR 1998 SC 2251, in which the Supreme Court took a view that the advertisement dated 5.11.1993 inviting applications for 23 vacancies in the posts of Assistant Director (Junior) in the Agriculture Marketing Service of the State of rajasthan had become infructuous and otiose after the amendments to the Rajasthan Agricultural marketing Service Rules, 1986, by notification dated 19.4.1995. Mr. BK Sharma contended that as soon as sub-rule (5) of rule 11 of the 1988 Rules providing for filling up 25 % of the vacancies in the promoted cadre posts including the posts of Deputy Director and Assistant Director in the Directorate of Dairy Development by direct recruitment was deleted by the 1997 Amendment Rules by notification dated 11.12.1997, no direct recruitment could be made to the said posts of Deputy Director and Assistant Director pursuant to advertisement dated 14.11.1997.