APURBA KUMAR SARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) HEARD Mr. BK Sharma, learned senior counsel for the appellants and Mr. KP Sharma, learned senior counsel for the respondents.

(2.) THIS Writ Appeal is directed against the judgment and order dated 22.4.2002 passed by the learned Single Judge in WP(C) No. 5386/ 2000. The writ petition was filed by Sri Puspak Kumar Baruah for quashing the letter dated 24.5.2000 (Annexure -I) in so far it relates to the question of amendment of the Service Rules and to hold the Departmental Promotion Committee meeting for consideration of his case for promotion to the post of Deputy Director, Biology Division in Forensic Science Laboratory. The learned Single Judge by the impugned judgment directed the State authority to consider the case of the petitioner for promotion under the existing Rules. In pursuance of this judgment, the petitioner (private respondent) was promoted to the post of Deputy Director (Biology) by the order dated 22.1.2003. The appellants who were not arrayed as respondents in W.P.(C) No. 5386/ 2000 have filed this appeal as the direction given in the writ petition is prejudicial to their interest. Their case is that they are senior to the private respondent and, therefore, should have been promoted before the private respondent in terms of the judgment in Civil Rule no. 3022 and 3013 of 1993 disposed of in 1996.

(3.) THE impugned letter shows that the authority decided not to consider the appellants for promotion till amendments are carried out in pursuance of the judgment in C.R. Nos. 3022 and 3013 of 1993. The letter further shows that the State authority has been contemplating to amend the rules in pursuance of the direction given in the said Civil Rules disposed of on 27.9.1996. The learned Single Judge while disposing of the said petitions, with reference to the proviso to Rule 12 which restrict promotion divisionwise, observed as follows :. Bearing in mind this general principles, governing the interpretation of a proviso, let us now examine the proviso to Sub -rule (1) of Rule 12 as quoted above. The general rule governing the promotion is stated in Sub -rule (1) which in turn refers to Rule 13 which provides for a general procedure of promotion and Rule 13(2)(b) clearly provides for the list of eligible officers for promotion in order of seniority to be prepared and furnished by the appointing authority for information. As regards the number of vacancies and the list of officers in order of seniority, eligible for promotion with separate list of promotion to different cadres to be furnished by the appointing authority further indicating the cadre to which the case for promotion is to be considered. The rule itself is reproduced below. Reading the proviso in juxtaposition with Rule 13(2)(b), the repugnancy between the two is apparent. It leads to conflicting results. In the same set of facts two different provisions have been made. It is riot merely a case of inconsistency but incompatibility as well. Had it been the intention of the rule makers to provide a scheme for promotion confined to particular division, there was nothing to prevent the authorities from suitably wording the Rule 13(2)(b) which speaks of list of officers in order of seniority eligible for promotion to different cadres and not different divisions as is sought to be contended by the respondents. Sub -rule (3) further provides that the appointing authority shall simultaneously request the Board to prepare and recommend a list of officers found suitable for promotion in order of preference in respect of a promotion to which all the cadres in which the recruitment is to be made by promotion. Except for the proviso, there is no reference to the term 'division' which again has not been defined under Rule 2, dealing with the definition of various terms.