PRABIN KUMAR SAIKIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) By means of this writ petition, the petitioner has called in question "the deemed appointment" as contemplated under Rule 4(3) of Assam Civil Services (Class-I) Rules, 1960. Rule 4(3) was inserted by an amendment to the said rules of 1960 brought vide notification dated 16.12.1989. As per the provisions of the Rules of 1960, before it was amended in 1989, there are 2 (two) classes of service, namely, Class-I and Class-II. When it was felt that no meaningful purpose was served by making the two sets of classes of Officers, namely, Class-I and Class-II, the aforesaid amendment was brought vide notification dated 16.12.1989, in terms of which all existing members of ACS (Class-II) were deemed to have been appointed to ACS (Class-I) (Junior Grade). The effective date of such appointment was notified vide Annexure-A notification dated 30.12.1989. Be it stated here that the private respondents have been appointed to ACS Class-II prior to 30.12.1989 and by virtue of the said amendment coupled with the notification dated 30.12.1989, they became members of the ACS Class-I in view of the aforesaid deemed appointment to the service. Be it also stated here that when the amendment was brought and the notification dated 30.12.1989 was issued, the petitioner was not born in the ACS cadre as he was appointed only in the year 1992.

(2.) I have heard Mr. T.C. Khatri, learned senior counsel assisted by Mr. B. Pushilal, learned counsel for the petitioner as well as Ms. B. Dutta, learned State Counsel. I have also heard Mr. H.K. Mahanta, learned counsel appearing for respondents No. 3 and 4 and so also Mr. U.K. Nair, learned counsel representing the respondent No. 6. Mr. C. Baruah, learned counsel entered appearance on behalf of the APSC and he has also been heard. I have also heard Mr. P. Dutta, learned representing the respondent No. 5.

(3.) At the outset, learned counsel representing the respondents have contended that the instant writ petition is not maintainable, inasmuch as, the issue raised in the writ petition has already been adjudicated upon in earlier round of litigation involving the same parties. In this connection, they have referred to the judgement and order dated 28.2.2006 passed in WP(C) No. 6625/2002 (Prabin Kumar Saikia and others Vs. State of Assam & Ors.) and WP(C)No. 1679/2003 (Prabin Kumar Saikia & Ors. Vs. State of Assam & Ors.). According to the learned counsel for the respondents, the instant writ petition is clearly barred by the principles of resjudicata/constructive resjudicata. They submit that in the garb of the instant writ petition, the petitioner cannot be allowed to go for repeat performance in respect of the same grievance that was raised in the earlier round of litigation, which has finally been adjudicated upon by the aforesaid judgement and order dated 28.2.2006.