ROMESH CH CHUTIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioners involved in this two writ petitions are serving as Assistant Inspector "of Schools in the Education Department. While in the 1st writ petition being WP(C) No. 216/2011, the prayer of the petitioners is to issue a direction to the respondents to enhance the quota of promotion to the cadre of Inspector of Schools from the existing 25% to 50%; in the 2nd writ petition being WP(C) No. 6135/2011, in addition to the above prayer, further prayer is to set aside and quash the advertisement No. 10/11 issued by the Assam Public Service Commission (APSC) for 16 posts of Deputy Director/Inspector of Schools in the Education (Secondary) Department. As could be gathered from the pleadings raised in the writ petition, according to the petitioners there is need and justification to increase the promotional quota upto 50% from the existing 25% as provided for under Rule 5(3) of the Assam Education Service Rules, 1982. It has been contend that the members of the Assam Education Service (Class -I) Officers Association has been praying for necessary amendment of the said Rules of 1982 for enhancement of promotional quota in the cadre of Deputy Director of Public Instruction/Inspector of Schools. It has further been contended that since there is proposal to amend the Rules towards increasing of quota, pending consideration of finalization of such proposal/the respondents ought not to have and could not have issue the impugned advertisement No. 10/11 proposing to fill up 16 posts of Deputy Director/Inspector of Schools by way of direct recruitment.

(2.) I have heard Mr. S.S. Dey, learned Sr. Counsel, assisted by Ms. D. Borgohain, Learned Counsel for the petitioners. I have also heard Mr. A.D. Choudhury, learned Standing Counsel, Education Department. Advancing an altogether different argument then the pleaded case of the petitioners, Mr. Dey, Learned Counsel for the petitioners submits that when provisions of the aforesaid 1982 Rules do not provide for any direct recruitment to the post of Inspector of Schools from the open market, the respondents could not have issued the advertisement proposing to fill up the posts of Deputy Director/Inspector of Schools through open competition to be conducted by the APSC. Being confronted with the queries made by the Court as to how the petitioner can take altogether different stand during the course of argument than what has been pleaded in the writ petition, Mr. Dey, Learned Counsel for the petitioners submits that since the question raised is essentially a legal question, the Court will not non - suit the petitioner on that count.

(3.) MR . Choudhury, learned Standing Counsel, Education Department, referring to the pleaded case of the petitioners, which is enhancement of prescribed quota for promotion (25% to 50%) submits that the petitioner cannot be permitted to argue altogether a different case than what has been pleaded in the writ petition.